Summary: The Council delayed deciding whether to issue Mrs X’s child, Y with an Education, Health and Care (EHC) Plan within statutory timescales. This was caused by an 11 week delay in obtaining Educational Psychologist advice during Y’s EHC needs assessment. The Council agreed to apologies to Mrs X and make a payment to recognise the injustice caused. The Council was also at fault for failing to decide whether it should put alternative provision in place for Y when Mrs X made it aware in October 2024 that Y was not in school. This did not cause an injustice however because Y’s school had put appropriate support in place.

The complaint

1. Mrs X complained the Council has delayed completing her child, Y’s Education, Health and Care (EHC) needs assessment which is causing an ongoing delay in issuing the final EHC Plan. She also complained the Council failed to put alternative provision in place for Y between October 2024 and May 2025 when they were out of school because of anxiety.
2. Mrs X says the matter is impacting on Y’s education and causing distress and uncertainty.

Back to top

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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

7. I have investigated the delays in Y’s EHC needs assessment up to the point the Council made a decision to issue them with an EHC Plan in September 2025. Although there is continued fault, I have not investigated the subsequent period because at the time of writing the Council has still not issued Y’s final EHC Plan. Until the Council issues Y’s EHC Plan we cannot properly assess Y’s injustice.
8. It will be open for Mrs X to complain about the delays in issuing Y’s final EHC Plan and the injustice this caused from September 2025 onwards once the Council issues it.

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant law and guidance

Education, Health and Care Plans

11. 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.
12. 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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

13. If the Council agrees to carry out the assessment following a mediation meeting then the Council must decide whether to issue the EHC Plan within 10 weeks and finalise the EHC Plan within 14 weeks of the mediation agreement.
14. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice

Alternative provision and the Section 19 duty

15. 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.
16. 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
17. In practice, we would expect to see Councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a Council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.

What happened

18. Mrs X has a child, Y who began secondary school (School B) in September 2024.
19. Y stopped attending School B in October 2024 due to anxiety. At the time Y was being assessed for Autism. Records show Mrs X emailed the Council during October asking for alternative provision. The Council acknowledged Mrs X’s email but did not formally respond.
20. School B carried out home visits and offered Y various support to try and help them reintegrate back into a school environment. This included:
• Working being sent home
• Attending School B on a flexible basis
• Access to a calm space
• Late starts and early finish to help Y avoid crowds
• Equipment to support Y’s sensory needs
• An offer for Mrs X to come into School B to help ease Y’s anxiety.

There is no evidence Y engaged with any of the support on offer.

21. Y remained out of school during the rest of the Autumn term into the Winter term. Records show the Council’s Education Welfare officer (EWO) monitored Y’s attendance issues and arranged a meeting in November with Y, their family and the school to try and address the barriers Y was facing. Y and their family however did not attend the meeting
22. In late January 2025 Mrs X asked the Council to carry out an EHC needs assessment for Y. The Council put Mrs X’s request to its Assessment Panel who decided not to carry out the assessment. The Panel said although it recognised Y had difficulties it believed Y’s needs could be met by School B with reasonable adjustments in place. The Council issued its decision notice to Mrs X at the end of March 2025.
23. Mrs X requested mediation on the Council’s decision. The mediation meeting was scheduled for May 2025.
24. A professional’s meeting was held in February. Notes said the support had not been successful. School B said ‘safe and well’ checks were rarely answered. Case notes show the school requested the EWO to issue Mrs X with an attendance warning notice. The EWO issued a notice in asking Mrs X to improve Y’s attendance.
25. Following the warning notice Mrs X contacted the Council. A meeting was held with School B which outlined the support which continued to be on offer.
26. Mrs X complained to the Council in March 2025 about Y’s lack of suitable education. Mrs X said Y had recently been diagnosed with Autism and was not attending School B due to anxiety. Mrs X said School B had tried part time timetables which had not been successful as Y found school too large and noisy. Mrs X said she asked the Council in October 2024 for help and despite an acknowledgement had no further response. She was unhappy about receiving attendance warning notices and about the Council’s decision not to carry out an EHC needs assessment.
27. The Council responded to Mrs X’s complaint in April 2025. It said Mrs X’s email in October 2024 was sent to an officer who left the Council three years ago which is why it was not responded to. The Council said School B had said it could meet Y’s needs and make adjustments for their Autism and anxiety. The Council was satisfied with the support offered and in place from School B which included a bespoke timetable.
28. Mrs X escalated her complaint to stage two of the complaints procedure, unhappy with the Council’s response. The Council responded in May and said:
• It was unable to establish why it did not respond to Mrs X’s October 2024 email, despite acknowledging it.
• It accepted Mrs X did not accept the support in place for Y was effective. The Council remained of the view that they were appropriate to support Y’s attendance back into school.
• Y was currently attending some sessions at school on a flexible basis.
• In summary, it believed a school place was available for Y and reasonable to access. A part time timetable was in place and there was an extensive package of support in place. It said Y’s current medical evidence did not support Y’s current level of non-attendance
29. Mrs X remained unhappy and complained to us.
30. Following Mrs X’s complaint to us the Council reviewed Y’s circumstances in May 2025 after receiving medical evidence from CAMHS (Child and Adolescent Mental Health Services) and a S19 referral from School B. The Council allocated Y a place at an alternative provision placement doing short hours with a view to building them up.
31. Y’s EHC needs assessment mediation meeting took place in May and following this the Council agreed to carry out the assessment. In line with statutory timescales this meant the Council should have decided whether to issue Y with an EHC Plan by the end of July. That being the case the Council should then have issued Y’s final EHC Plan by the end of August 2025.
32. As part of the assessment the Council requested advice from an Educational Psychologist (EP). The EP provided advice in mid-September 2025 which was a delay of 11 weeks. The Council sent its decision to issue Y with an EHC Plan three weeks later in October.
33. At the time of writing the Council has still not issued Y’s final EHC Plan.
34. The Council told us in response to our enquiries that it accepted it was in breach of statutory timescales caused in part by a delay in obtaining EP advice. It said it is currently acting to reduce delays in the EHC process. Following recent Ofsted findings, it has recently held a meeting and a SEND action plan is now in place which includes recruitment of EPs. It said it has recently recruited more staff which it hopes will reduce the backlog.

My findings

EHC needs assessment

35. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
36. Following its refusal of Mrs X’s initial request for an EHC needs assessment the Council changed its view and agreed to carry out the assessment in May 2025. This being the case the Council should have made its decision to issue the Plan by the end of July 2025.
37. The EP report should have been available to the Council by the start of July 2025 in order for it to have met the 10 week deadline at the end of July. The EP report was not complete until the start of September 2025 which was a delay of 11 weeks and fault. It caused a delay in the Council deciding whether to issue Y with an EHC Plan which it did not make until October 2025. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases.
38. With EP advice in hand the Council should have issued Y’s final EHC Plan by early November 2025. Although there is continuing fault because the Council has not, to date issued Y’s final EHC Plan I have not investigated after the decision to issue in October 2025. This is because we cannot know the extent of the injustice caused to Y until the Plan is eventually issued. I have made a recommendation below for the Council to consider an appropriate remedy once it issues the Plan. However, it is open for Mrs X to complain to us again if she remains unhappy.

Alternative provision

39. Mrs X told the Council in October 2024 that Y was out of school and requested alternative provision. Therefore, it was aware at this point that Y was not attending School B. The Council acknowledged the email but took no further action. In line with relevant law and guidance it is the Council’s legal duty to consider, at the time whether or not it is appropriate to put provision in place for a child not attending school. Although there is evidence of involvement from the Council’s EWO around attendance it did not make a decision or inform Mrs X of its decision at the time whether it had a S19 duty to put alternative provision in place for Y. This was fault.
40. However, this fault has not caused an injustice because the evidence shows support was in place for Y from the outset as outlined above. The support included visits from the school, flexible timetables and adjustments to help with their anxiety. When the Council did review Y’s educational arrangements following Mrs X’s complaint, it was satisfied with this level of support and believed School B remained reasonable and accessible for Y to attend. On balance, it is unlikely the Council would have come to a different view had it reviewed the arrangements earlier.
41. Following further medical evidence from Mrs X the Council accepted a S19 duty in May 2025 and this provision began shortly after. This was an appropriate course of action. If Mrs X has further concerns about Y’s alternative provision from May 2025 onwards it is open for her to make a new complaint.

Back to top

Action

42. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X and pay her £275 to recognise the distress and uncertainty caused to her by the Council’s delay in deciding whether to issue Y with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist. 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.
2. Once the Council issues Y’s final EHC Plan it should consider whether the delay since its decision to issue the Plan has caused Y any further injustice and whether or not there has been a loss of provision. The Council should consider providing Mrs X with a remedy for any injustice caused to Y and Mrs X since October 2025. It should consider our guidance on remedies in doing so.
3. Remind SEND staff through either briefings or training that it is the Council’s legal duty to decide whether or not it owes a child the Section 19 duty. The Council should ensure officers make decisions about whether to put alternative provision in place at the time it becomes aware a child is not attending school and to keep sufficient oversight of the circumstances throughout.
4. Provide us with a copy of its SEND action plan and highlight the areas within the Plan which deal with its recruitment of Educational Psychologists and how it is dealing with reducing delays in the Education, Health and Care Plan process.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

44. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman