Summary: Miss B complained there were delays by the Council during the Education, Health and Care (EHC) Plan process for her son, who I will refer to as C; it failed to secure provision for C as set out in his EHC Plan, and it failed to arrange alternative provision for C when he was unable to attend school. There was fault by the Council. The Council did not meet statutory timescales during the EHC Plan process, did not properly consider and evidence if a section 19 duty applied and if C’s school was available and accessible, and delayed putting in place education provision for C. Because of the fault, Miss B suffered uncertainty and a delayed right of appeal. C also missed out on education provision. The Council has agreed to apologise to Miss B, provide symbolic payments, issue staff briefings, and send us a copy of its action plan.

The complaint

1. Miss B complains the Council failed to:
• follow statutory timescales during the Education, Health and Care (EHC) Plan process for her son’s, who I will refer to as C, EHC Plan;
• deliver the provision set out in the Plan to him; and
• arrange alternative education for C when he became unable to attend school.
2. Miss B says the Council’s actions have caused her distress and impacted her financially. She says C’s health has also been negatively impacted and he has missed education.
3. Miss B would like the Council to apologise and arrange a suitable education for C. She would also like the Council to pay her a financial remedy for the education C has missed, and the alternative provision she has paid for.

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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 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)
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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(1), 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 matters in this case from late February 2024, when Miss B asked the Council to carry out an EHC needs assessment for C, to late December 2024 when the Council issued the final EHC Plan for C. I reference matters outside of these dates for context.
12. Miss B complains C has not been in full-time education since November 2022. As outlined in paragraph 5, we cannot investigate late complaints unless there are good reasons. I do not consider this to be the case, so I have not considered all matters from November 2022 onwards. However, I have exercised discretion to consider matters from February 2024 when Miss B requested the Council carry out an EHC needs assessment for C. It would be appropriate to include this in my investigation, as this marks the start of the EHC Plan process.
13. Miss B complains the Council failed to deliver the provision set out in C’s EHC Plan to him. I have not investigated this part of the complaint. Miss B appealed the content of the final EHC Plan to the SEND Tribunal. As such, we cannot investigate how the Council delivered the content of C’s EHC Plan. 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)
14. Part of Miss B’s complaint mentions C’s previous school refused to request an EHC needs assessment for him. I have not investigated this part of the complaint. It seems this happened outside of the scope of my investigation – before February 2024. Further, as outlined in paragraph 8, we cannot investigate internal school matters.

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How I considered this complaint

15. I read Miss B’s complaint and spoke to her about it over the phone.
16. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
17. Miss B and the Council 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

EHC Plan 

18. 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. 
19. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Timescales and process for EHC needs assessment

20. 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).

General section 19 duty

21. 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.
22. 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)
23. 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)

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What happened

24. This is a summary of events outlining key facts and it does not include everything that has happened in this case.

EHC needs assessment process

25. In late February 2024, Miss B contacted the Council and requested an EHC needs assessment for C.
26. In April 2024, the Council sent its decision to Miss B. It told her it did not agree to carry out an assessment for C. Miss B lodged an appeal with the SEND Tribunal about this decision. A mediation meeting was held in May 2024. The Council said it would reconsider its decision not to assess C. In mid to late June 2024, the Council told Miss B it had changed its decision, and it agreed to assess C. This conceded Miss B’s appeal with the Tribunal, and so the appeal was closed.
27. The Council issued a draft EHC Plan for C at the end of November 2024. It issued the final EHC Plan in late December 2024. Miss B appealed the Plan to the SEND Tribunal.

Section 19 duty

28. C has not been in full time education since November 2022. The Council says it accepted the section 19 duty in June 2023 and arranged tuition for C of two hours each week, which was provided until mid-December 2023 to support C’s transition into a new school. The Council says the tuition was withdrawn as C was not engaging in education with the provider, rather, the provider was instead delivering play opportunities. For the period I have investigated, the Council says it fulfilled its section 19 duty by providing funding to C’s school in March 2024 for one-to-one teaching assistant support of two hours each day to build relationships and support C to attend school.
29. From November 2024, alternative provision for C was in place of nine hours each week for 12 weeks. The Council started arranging this in July 2024 with the aim of it being in place for the new term starting in September 2024. The Council says this arrangement was in place until July 2025.

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Analysis

EHC needs assessment process

30. It is clear from the documentation there have been delays in this case. The Council conceded Miss B’s appeal when it reversed its initial decision and agreed to assess C. So, it should have issued the final EHC Plan within 14 weeks of notifying the Tribunal of its decision. The Tribunal received the Council’s notification on 20 June 2024. This means the Council should have issued the final EHC Plan by 26 September 2024. But it did not issue the final EHC Plan until 24 December 2024. This was a delay of roughly 13 weeks. This was fault.
31. The Council says the delay was caused by receiving advice which was unsigned, which it had to chase, and Miss B being late to submit her parental preference for schools for the Council to consult with. It also says it received these returned consultations late. The Council received the advice it refers to, on 9 August 2024. The Council asked for this advice to be signed on 10 October 2024. So, while it had to chase for this advice to be signed and completed, it could have done this sooner when it first received the advice in August 2024.
32. Parents have 15 calendar days to express a preference for an educational setting once the draft EHC Plan is issued. The Council issued the draft EHC Plan on 28 November 2024, nine weeks later than when the final EHC Plan should have been issued. So, Miss B insignificantly contributed to the delay of the final EHC Plan being issued, if at all. Similarly, the Council received the school’s consultation response on 19 December 2024, six days after it was due. While this response was late, the six-day late consultation response did not significantly contribute to the 13-week delay in the Council’s issuing of the final EHC Plan.
33. The 13 week wait delayed Miss B’s right of appeal to the SEND Tribunal until it issued the final Plan in late December 2024. We take the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timescales here is fault and has caused Miss B distress and frustration. Had the Council issued C’s EHC Plan in line with statutory timescales, he would have had the Plan in place from late September 2024. Due to the delays, C lost the opportunity to receive this provision, and it caused uncertainty to Miss B about the provision C would receive. I have made recommendations below to reflect this.
34. The Council says it has now embedded a designated social officer for SEND to ensure it improves timeliness going forward. It also told me it has introduced a new action plan, with a strong focus on statutory processes and timeliness. It says these improvements were planned to be prioritised from September 2025. I welcome the action the Council is taking, and I have recommended the Council provide us with evidence of its action plan.

Section 19 duty

35. The law requires councils to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. When Miss B requested an EHC needs assessment for C, she noted in her request C had been unable to attend school and she was of the view alternative provision would be appropriate. So, when the Council received this request in late February 2024, it should have considered its section 19 duty. The Council says it provided funding to C’s school shortly after in March 2024 to support reintegration and fulfil its duty to provide a suitable education. So, it seems the Council made the decision that because it had provided funding to the school for it to arrange one-to-one teaching assistant support of two hours each day, it was satisfied it did not need to arrange alternative education provision. It seems the Council’s view was C’s school was suitable and available for him to attend. But I have not seen evidence to show how the Council decided this. The Council’s failure to properly consider and evidence if a section 19 duty applied and ensure C received an education provision was fault.
36. This caused an injustice to Miss B. The Council did not evidence if it considered C’s school remained suitable and available for him after Miss B said it was not and requested alternative provision. So, C may have missed education from February 2024 to July 2024. I have considered the period after July 2024 below. The injustice to Miss B is the uncertainty about what education C may have missed. I have made a recommendation below to reflect this.
37. It appears the Council later accepted a section 19 duty applied in July 2024 when it discussed alternative provision with Miss B and said it would arrange provision for the new term starting in September 2024. But the provision was not immediately available, and the first session was in mid-November 2024. As the Council knew C was out of school, it knew he would not be receiving any education provision while the provision was being put in place. The Council's delay in it putting the provision in place was fault.
38. The fault caused an injustice to C. C missed education provision from the start of the new term in September 2024, when the Council said the alternative provision would be in place, to mid-November 2024 when it began. There is also uncertainty about whether C would have been able to engage with more provision given the struggles he had with accessing learning. I have made a recommendation below to reflect this.
39. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
40. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
41. When a young person has missed education because of fault by a council, we may recommend the council make a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
42. In determining an appropriate level we will take account of factors such as:
• The severity of the young person’s SEND as set out in the EHC Plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a young person’s school career, for example the first year of compulsory education, the transfer to secondary school or the period preparing for public exams.
43. Given C’s age, the stage of education and the level of education and provision that was provided, I consider a payment of £900 per term of missed provision would be appropriate.

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Action

44. To remedy the outstanding injustice caused to Miss B and C by the fault I have identified, the Council will take the following actions within four weeks of my final decision:
• Apologise to Miss B for the delayed appeal right and uncertainty, and the missed opportunity for C to receive provision sooner, caused by the delays in the EHC needs assessment process and issuing of the final Plan. This apology should be in accordance with our guidance Making an effective apology.
• Apologise to Miss B for the uncertainty caused after it failed to properly consider and evidence if a section 19 duty applied and ensure C received an education from February 2024 to July 2024. It will also apologise for the failure to ensure C received an education provision from September 2024, when the Council initially said the alternative provision would begin, to mid-November 2024 when it began. This apology should be in accordance with our guidance, as above.
• Pay Miss B £250 for the injustice caused by the delays in the EHC needs assessment process and issuing of the final Plan.
• Pay Miss B £200 for the injustice caused by the Council not evidencing if it properly considered C’s school remained suitable and available for him after Miss B said it was not and requested alternative provision in February 2024, and the uncertainty caused by this.
• Pay Miss B £600 for the delay in arranging education provision to C from when the new term started in September 2024, when the Council said it would arrange the alternative provision to begin, to mid-November 2024 when it began. And for the uncertainty about whether C would have been able to engage with more provision given the struggles he had with accessing learning.
45. The Council will also take the following actions within three months of my final decision:
• Send us a copy of the new action plan the Council says it has introduced which focuses on statutory processes and timeliness.
• Remind relevant staff of the statutory timescales for the EHC needs assessment process and the issuing of final EHC Plans, and the importance of meeting these timescales.
• Remind relevant staff of the Council’s statutory obligation to ensure a child receives a suitable education if they cannot attend school. And if they are satisfied a setting is suitable, evidence how they consider it remains available and accessible.
• Share our focus report "Out of school, out of sight?" with relevant staff to emphasise the Council’s section 19 responsibilities and identify wider points of learning.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. I uphold Miss B’s complaint and find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman