Summary: Mrs X complained about the way the Council dealt with her daughter, Y’s education. The Council was at fault for failing to properly consider its section 19 duties, delaying in issuing Y’s Education, Health and Care plan and poorly responding to Mrs X’s complaints. This caused distress, frustration and uncertainty to Mrs X and Y. The Council has agreed to apologise, make a payment to recognise the injustice caused and make service improvements.

The complaint

1. Mrs X complains about the way the Council dealt with her daughter, Y’s education, she says the Council:
1. failed to engage in mediation following its decision not to assess Y;
2. failed to organise alternative provision for Y, when she could not attend school;
3. failed to adhere to the statutory timeframes regarding her Education, Health and Care needs assessment;
4. failed to consult with her preferred schools;
5. failed to respond to her request for an extension to comment on the draft Education, Health and Care plan; and
6. poorly responded to her complaints.
2. Mrs X says this caused her and Y significant distress. She also says this has caused Y to be out of education since May 2024 during an important stage of her education.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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(i), as amended)
5. The courts have established that if someone has appealed to the SEND 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)
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
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 have and have not investigated

8. I have not investigated Mrs X’s complaint that the Council failed to engage in mediation following its decision not to assess Y and that it failed to consult with her preferred schools, because Mrs X appealed to the SEND tribunal about these matters. 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.
9. I have also not investigated Mrs X’s complaint that the Council failed to respond to her request for an extension to comment on the draft Education, Health and Care plan. This is because Mrs X has confirmed that the Council did allow her to comment on the draft EHC plan and so any injustice would not be significant enough to justify our involvement.
10. I have not investigated any matters relating to this complaint before June 2024, this is because we cannot investigate late complaints unless we decide there are good reasons. I see no good reasons why Mrs X could not have complained to us about any of these matters sooner.
11. I have investigated the remainder of matters relating to this complaint from June 2024 to the end of June 2025 when Mrs X complained to us.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X 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

Legislation and guidance

EHC Plan 

14. 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.

Timeframes and process for EHC assessment 

15. 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).

Mediation

16. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal.

Appeal rights

17. 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.

General section 19 duty

18. 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.

Inability to attend due to health needs

19. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
20. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
21. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
22. 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))

Principles of Good Administrative Practice

23. The Ombudsman published the Principles of Good Administrative Practice in 2018. This sets out the standards we expect from bodies in jurisdiction.
24. The guidance stressed the importance of taking responsibility for actions and operating an effective complaints procedure.

What happened?

25. Y is a child in year 9 of education. She was attending a mainstream school.
26. Mrs X made an application to the Council for an EHC plan for Y in May 2024. She also noted at this point that Y could not attend school because of mental health concerns.
27. The Council decided it would not assess Y for an EHC plan at the end of June. Mrs X appealed the Council’s decision.
28. In early October, the Council noted that Y attended a gardening club for half a day a week. It also noted there was no medical evidence to support Y’s non-school attendance and asked Y’s school to get a letter from a psychiatrist to consider next steps. It noted Y was taking medication but was unsure what for.
29. The Council conceded on the day of the appeal and agreed to assess Y on 14 October.
30. The Council met with Y’s school in mid-November. The school noted that Y’s attendance was 5.56%. It also noted she had mental health difficulties, ASD and was receiving psychiatric support and taking unknown medication. The Council told the school to request medical evidence and consider discussing Y’s case at a medical panel.
31. The Council issued Y’s draft EHC plan on 6 February and the final plan on 6 March.
32. Mrs X complained to the Council in mid-March. She said Y had been out of education since May 2024 and delays in the EHC process had left her with an inadequate EHC plan that doesn’t meet her needs.
33. The Council replied to Mrs X’s stage one complaint on 3 April. It said:

• It apologised that it failed to issue the EHC plan within statutory timeframes. It noted there was an error in allocating the assessment for Y once it received the tribunal outcome.
• As Y had only recently been awarded an EHC plan, the Council needed to make enquiries to respond to Mrs X’s complaint that Y had been out of education since May 2024. It noted it became aware of Y’s attendance issues in March 2024. It said it had taken action to support Y in education and did not uphold the complaint.

34. Mrs X was unhappy with the Council’s response and asked it to escalate the complaint to stage two the same day. She noted that Y had been out of education and the Council failed in its duty to provide Y with suitable education.
35. The Council held a meeting with Y’s school in mid-March. The school noted Y’s attendance was now 2% and that Y had high levels of anxiety and depression and a diagnosis of ASD and ADHD. The school explained it had put in a lot of support but now supported a specialist placement for Y. The outcome of this meeting was that the Council and school would continue to support Y until alternative provision was put in place.
36. At the end of March, the Council asked an internal panel to consider an increase in funding to support Y’s needs. Mrs X proposed a specific local provision as a suitable package, but the Council said it did not commission interim packages with this provision. Instead, the Council agreed to fund a placement at a therapeutic provision for summer term 2025 to try to reintegrate Y back into school.
37. The Council held an emergency annual review in early May. It noted:

• Y had not attended school for the past year, and her school could not manage her needs;
• Y was attending a therapeutic provision one day a week, but this was not an academic provision and so she was not receiving any education. She was due to start an online provision three days a week within the next week.

38. Following this annual review, the Council referred Y’s case to a multi-agency decision making panel which was held in mid-May 2025. The Council said it did not approve a change of placement for Y because she was not attending school and there was no evidence to show she needed an immediate change. It decided the funding remained the same, but in recognition of the school’s concerns about meeting Y’s needs, it agreed to provide additional funding in the autumn term.
39. The Council replied to Mrs X’s stage two complaint in mid-May. It noted:

• It agreed with the stage one response;
• It should have issued Y’s final EHC plan by 20 January 2025 but did not do so until 6 March 2025. The Council acknowledged that this delayed Mrs X’s right of appeal.
• The Council held regular meetings with Mrs X and Y’s school in line with its section 19 duties when it became aware that Y was not attending school full-time because of anxiety. It said it met its duties in relation to Y’s education and did not uphold Mrs X complaint that it failed to provide Y with suitable education.
• The Council offered Mrs X a financial remedy of £200 for the injustice caused by the delay of two months in issuing the final EHC plan.

40. The Council made another referral to the multi-agency decision making panel at the end of August to review Y’s case.

Response to my enquiries

41. The Council noted that Mrs X had appealed Y’s EHC plan and was awaiting tribunal.
42. The Council also told me it had made significant improvements to its service structure including the introduction of a dedicated team which means each family will have a consistent member of staff working with them on all aspects of the EHC process. It has also recruited more council officers.

Findings

The Council failed to organise alternative provision for Y, when she could not attend school

43. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
44. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against decisions, or seek to replace its judgement with our own. If a council has made a decision without fault, then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
45. What that means in this case, is that it is not for me to make my own judgement about whether Y should have been provided with an alternative provision. However, I can decide whether the Council properly considered if they had a duty to deliver such provision to Y, who was out of school.
46. Mrs X and Y’s school told the Council on several occasions that Y may not have been able to attend school and wasn’t attending since May 2024. They both said this was because of Y’s mental health, ASD, ADHD and other medical reasons. The school also told the Council Y was taking medication and seeing a psychiatrist.
47. Despite this, the Council did not itself ask for any medical evidence. It did ask the school to gain such medical evidence, but there is no evidence that the school sent this to the Council for it to consider.
48. In response to my enquiries, the Council did not provide any evidence of consideration of its section 19 duties in relation to Y. Although I note that Y was attending a therapeutic provision, the Council was clear that this was not an educational provision.
49. The information provided by Mrs X and the school was clear that Y had medical conditions which affected her attendance at mainstream school. The Council should have sought further evidence and used this as part of a consideration of its section 19 duties, but I see no evidence that it did so.
50. This was fault, which caused Y an injustice. Although I cannot say what the outcome would have been had the Council considered its section 19 duty properly. Its failure to do so has caused uncertainty as it is unclear whether Y had suitable education available and accessible to her between May 2024 and May 2025.
51. The Council should provide personal remedies to Mrs X and Y to recognise their injustice. It should also take steps to improve its service.

The Council failed to adhere to the statutory timeframes regarding Y’s Education, Health and Care needs assessment

52. We expect councils to follow the statutory timeframes set out in the law and the Code.
53. The Council has already accepted that it issued the final EHC plan two months outside of the required timeframe. This was fault which caused Mrs X and Y frustration and uncertainty. The Council has already apologised for this and made a payment of £200 to Mrs X which was a suitable remedy, so I will not recommend any further action for the Council.

The Council poorly responded to Mrs X’s complaints

54. In its complaint responses, the Council responded to most of Mrs X’s complaint points. However, the Council did not fully address Mrs X’s complaint about the action it had taken to secure alternative provision. As noted in our Principles of Good Administrative Practice, we expect a council to take responsibility for its actions and operate an effective complaints procedure.
55. The Council did not do this here, and this was fault which caused Mrs X frustration and uncertainty. The Council should apologise for this.

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Action

56. Within four weeks of my final decision, the Council has agreed to:

• apologise to Mrs X and Y for the frustration and uncertainty caused by its failure to consider its section 19 duties and poorly responding to Mrs X’s complaints. 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; and
• make a payment of £4500 to Mrs X, on behalf of Y, to recognise its failure to properly consider whether Y should receive alternative educational provision while she was out of school between May 2024 and May 2025. This is calculated at £1500 per term. This is to acknowledge the distress and uncertainty caused by the Council’s failure to consider its duties properly. This is higher than the usual recommended scale of payment set out in our guidance on remedies, to reflect the significant injustice caused and Y’s vulnerability.

57. Within two months of the date of my final decision, the Council has agreed to send us an action plan which sets out how, in future, it will avoid similar failures to consider its section 19 duties to children out of school.
58. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman