Summary: Mrs X complained the Council failed to provide suitable alternative provision for her son, Y. She also complained the Council failed to issue Y’s Education, Health and Care (EHC) Plan within statutory timescales. Mrs X said Y missed education. She said the delays and missed provision frustrated her and impacted her financially. There was fault in the way the Council did not provide Y with suitable alternative provision and delayed issuing his final EHC Plan. This frustrated Mrs X, frustrated her appeal right to the Tribunal and Y missed education. The Council agreed to apologise and make a financial payment.

The complaint

1. Mrs X complained the Council failed to provide suitable alternative provision for her son, Y. She also complained the Council failed to issue Y’s Education, Health and Care (EHC) Plan within statutory timescales. Mrs X said Y missed education. She said the delays and missed provision frustrated her and impacted her financially.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. 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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How I considered this complaint

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. 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

Background information

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. 
• 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

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

• 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; and
• amendment to these elements of an EHC Plan.

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)
14. 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))
15. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
16. 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’)
17. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
18. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. Y stopped attending school in April 2024. Y’s school contacted the Council to complete an EHC needs assessment in May 2024.
21. The Council agreed to complete a needs assessment in June 2024. The Council also accepted a section 19 duty at this time. The Council asked the school to provide alternative provision. Mrs X said this was not suitable for Y, and he could not access provision at home.
22. In July 2024 the Council agreed to provide a mentor for Y.
23. Management in the Council turned down the mentor support in August 2024. The management suggested a keyworker was more suitable for Y. The Council confirmed it did not have any keyworkers employed in the area at this time.
24. Mrs X complained in September 2024. She complained about the lack of alternative provision and the delays in the needs assessment.
25. The Council responded to the complaint in October 2024. The response apologised for the delays in the needs assessment. The Council said it needed the Educational Psychologist (EP) report before it could continue the process. The Council also explained its decision to engage Y with a keyworker.
26. The EP completed the report and sent it to the Council at the end of October 2024.
27. Mrs X continued to chase the Council for alternative provision and the EHC Plan.
28. Mrs X complained again in February 2025.
29. The Council agreed to fund alternative provision with a mentor and tutor at the end of February 2025.
30. The Council issued the draft EHC Plan in March 2025.
31. The Council issued the final EHC Plan in July 2025.
32. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to apologise and provide a financial remedy.
33. In response to my enquiries the Council accepted it did not issue the EHC Plan within statutory timescales. The response confirmed the Council accepted there were “significant delays putting in support for Y” and recognised it was “not acceptable and Y should have been receiving support a lot sooner”. The Council confirmed it was taking action to improve its service.

My findings

Needs assessment and issuing the EHC Plan

34. We expect councils to follow the statutory timescales set out in the law and the code. We are likely to find fault where there are significant breaches of those timescales. Following the needs assessment application, the Council should have decided if it would complete a needs assessment by June 2024. The Council issued this decision a week before the deadline. The Council was not at fault.
35. Council’s must seek EP advice as part of an EHC assessment. This should be received within six weeks of the Council requesting it. The EP’s advice was due in July 2024. The Council received the EP report in November 2024, a three-month delay. The Council is responsible for the commissioning and delivery of the EP advice and information. The delay in receiving the advice was due to a nationwide shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons the EP advice took longer than it should have, the delay was nonetheless fault.
36. Even after considering the three-month delay in receiving the EP advice, the Council should have issued the plan by January 2025. The Council issued the plan in July 2025. This seven-month Council delay is fault.
37. The Council took 62 weeks to assess Y and issue a final EHC Plan, instead of the 20 weeks required by the regulations and the Code. This 10-month delay is fault.
38. There was an early delay caused by the EP shortage and then a second delay after this before the Council issued the final EHC Plan. This is fault. This frustrated Mrs X and frustrated her appeal right to the Tribunal.

Alternative provision

39. Councils 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”.
40. The Courts have said it is for a council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.
41. The Council accepted a section 19 duty to Y in June 2024 after the school confirmed Y was not attending. It should have provided suitable education from this date. The Council initially asked the school to provide support, but Mrs X confirmed this was not suitable for Y. The Council accepted this and agreed to provide a mentor for Y. It then changed its position and said it would provide a keyworker for Y. The Council said it had no keyworkers in post in the area at the time it made this decision. The Council has provided no explanation why this was a suitable recommendation, knowing it did not have the staff available to complete this work, when the mentor was previously agreed and available.
42. The Council accepted the significant delays securing alternative provision in its complaint response. The Council confirmed it should have provided support a lot sooner and it was not acceptable Y missed education. The Council had a duty to Y from June 2024 until it started providing support in March 2025, two academic terms. Not providing this provision is fault. This fault frustrated Mrs X and Y missed education for two academic terms.
43. I would usually make service improvement recommendations in a case such as this, but I can see other Ombudsman investigations made these. The Council has explained following similar cases investigated by the Ombudsman the action it is taking to meet the demands in its SEND service and to reduce the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. It is also in the process of publishing a new Section 19 policy. I therefore have not recommended further service improvements. We continue to monitor the Council’s ongoing work to reduce the backlog through our casework.

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Agreed action

44. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for not providing suitable alternative provision for Y and delaying issuing the EHC Plan. 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 I have recommended in my findings.
• Pay Mrs X £300 to recognise the uncertainty, avoidable distress and frustration caused by the delay in obtaining advice from an EP.
• Pay Mrs X £500 to recognise the distress, frustration and uncertainty caused by a seven-month delay in issuing Y’s EHC Plan.
• Pay Mrs X £2,000 for not ensuring Y received suitable education for two academic terms. This money should be used for Y’s benefit.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman