Summary: Mr B complained that the Council had delayed in completing an Education, Health and Care needs assessment in respect of his son C. He also complained that the Council had failed to provide suitable and accessible full-time education for C. We found there was delay in completing the assessment process due to a delay in receiving the Educational Psychology advice. We did not find fault with its actions in respect of alternative provision. The Council has agreed to apologise to Mr B and C and make a symbolic payment of £450.

The complaint

1. Mr B complained that Gloucestershire County Council (the Council) in respect of his son, C:
• delayed in completing an Education, Health and Care (EHC) needs assessment and issuing a final EHC Plan; and,
• failed to provide suitable and accessible full-time alternative education, following a referral from the school in November 2024.
2. Mr B said this caused distress and inconvenience to the family and C has missed out on essential education.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

5. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
7. 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

Special educational needs

8. A child or young person with special educational needs may have an 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. 

EHC needs assessment

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);  

Requesting advice

10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)), including psychological advice and information from an Educational Psychologist (EP). 
11. Those consulted have a maximum of six weeks to provide the advice. 

Deciding whether to issue an EHC Plan

12. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.

General section 19 duty

13. 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.
14. 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)

Educational provision – available and accessible

15. 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)

Council policy: Attendance and Section 19 0f the Education Act 1996 (August 2025)

16. This policy states:

“Where the Local Authority offers (based on an assessment of need) a package of alternative education that it deems to be reasonably practicable for that child it is not under a duty to provide further alternative education because the child is not taking advantage of that facility. Any Alternative Education Provision arranged should be considered as a short-term intervention, with the expectation it will support the child to reintegrate with education on the site of their home school at the earliest opportunity, a principle that schools, parents, children and partners are required to commit to.

Parents should be aware that it is their duty under Section 7 of the Education Act 1996, to secure an education for children of compulsory school age, which in this circumstance is the full and holistic package of support agreed and deemed reasonably practicable to access following the Section 19 assessment period.”

What happened

17. Mr B’s son C stopped attending school in March 2024. The school requested an EHC needs assessment. The Council initially refused to assess C. Following a successful appeal, the Council agreed on 2 September 2024 to carry out an assessment.
18. As part of the process the Council, on 17 November requested advice from an Educational Psychologist (EP) by 29 October.
19. On 19 November the school requested alternative provision for C. The Council convened a multi-agency meeting to consider the request. The meeting noted C had not attended school since April 2024, he did not leave the house, he enjoyed playing video games and it was not possible or practical for his mother to get him to school. The meeting felt he needed a clear reintegration plan put in place to support his condition along with parenting support to encourage reengagement. He had been allocated a mentor who was due to start in the New Year. A family support worker had offered support, but the relationship broke down. The school had been visiting C twice weekly, but it was difficult to engage with C.
20. The meeting agreed to a number of action points including:
• liaison with the mentoring scheme to better understand C”s needs and the reason for his lack of engagement with education.
• a referral to the Early Help team to gain more understanding of C”s homelife.
• arranging a ‘team around the family’ meeting to create a holistic plan to support C to engage in education and identify the support he required to achieve this.
• provision of education through Provider Z (online provision).
• reminding parents of their duty to secure an education for their child.
21. The meeting agreed alternative provision was necessary and that Provider Z should be commissioned for six weeks initially. The school would monitor C’s attendance and engagement. The meeting believed C could interact with a remote learning environment.
22. On 23 December the Council instructed Provider Z to put in place eight hours a week of education in literacy, numeracy and science, in addition to pastoral time and assemblies. The education started on 20 January 2025.
23. On 23 January Mr B complained that the statutory 20 week timeframe for completing the assessment had been exceeded and asked for an EHC Plan in the next five days. Mr B also complained that the alternative provision put in place was not suitable for C and was only part-time.
24. At the beginning of February C’s mother emailed Provider Z to say C had not been engaging in the lessons and they became stressful, so she decided not to push it anymore. She said he needed 1:1 in person tuition to try and engage him.
25. On 3 February the Council reviewed the alternative provision. C had attended one lesson, arrived late to one and left early from another two. He had not attended any other sessions. The Council considered the parents’ view that it was making C more anxious, and he needed face-to-face tuition and/or mentoring. The Council confirmed that the planned mentoring would not now take place due to C’s lack of engagement with Provider Z. But it noted there were other options to explore mentoring. The school had referred C again to the Early Help team and a team around the family meeting was due on 12 February to look at C’s wider needs and create a holistic plan. The school would explore off-site provision of non-verbal play therapy and remind the parents of their duty to secure education for C.
26. The Council decided not to extend the section 19 provision due to a lack of engagement and lack of support from the family to help C engage. There was no evidence, medial or otherwise of a change in his needs and it considered the online tuition was suitable and accessible.
27. On 27 February the Council responded to Mr B’s complaint at stage one of its complaints procedure. It said that the Council had exceeded the 20 weeks because the EP report had been delayed. It said it should be done by 28 March. It sincerely apologised for the delay.
28. The EP advice was received on 4 April. The Council decided on 22 April not to issue an EHC Plan. Mr B appealed. After mediation the Council overturned its decision and on 11 June agreed to issue an EHC Plan. It issued a final plan on 2 July naming the mainstream primary school he had been attending.

Findings

Assessment delay

29. The Council should have completed the EHC needs assessment and issued the final EHC plan by 9 December 2024 (14 weeks after it agreed to carry out the assessment). The Council requested the EP advice promptly, but it was delayed by approximately 18 weeks, due to an increase in the volume of requests and a national shortage of qualified staff. Once the EP advice was received the Council decided in less than three weeks not to issue an EHC Plan. Following a challenge and mediation the Council changed its mind on 11 June 2025 and issued the final EHC Plan on 2 July without any further delay. The delay (approximately 4.5 months) was entirely due to delayed EP report. This was fault which caused injustice to Mr B and C.

Alternative provision

30. Following the school’s request for alternative provision for C, the Council acted without delay to assess whether it had a section 19 duty in respect of C. It convened a multi-agency meeting in just over three weeks and carried out a detailed assessment of C’s situation. It decided to commission online tuition from Provider Z for eight hours initially, in addition to some pastoral and activity time, which it considered was accessible and suitable for C at that time to encourage re-engagement with education. The tuition started in just over a month. Given the Christmas break I do not consider this took too long. I have not found fault here.
31. C’s parents then decided after a short time that it was not suitable for C and without consultation with the Council withdrew him from the tuition. The Council carried out a detailed review of the provision and concluded the education was suitable and accessible and there was no evidence of a change in C’s needs to justify a different package. It considered that C’s parents had not supported him sufficiently to engage with the provision and concluded prematurely that it was not suitable for him. It declined to extend the alternative provision.
32. The Council has provided a detailed rationale for its decision, and it is in accordance with its policy on section 19 provision. I have not found fault with the way it was made.

Action

33. In recognition of the injustice caused to Mr B and C by the delay in completing the EHC needs assessment, I recommended that the Council within one month of the date of my final decision:
• apologises to Mr B and pays him £450.
34. As the Council provided us with its action plan for increasing the supply of EP advice in June 2024, I shall not make any recommendations for service improvements.
35. The Council agreed to the recommendations and should provide us with evidence it has complied with the above actions.

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Decision

36. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman