Summary: We have found the Council at fault for failing to make a Section 19 decision. This caused Mrs X avoidable distress and meant that her son, Y missed out on suitable education. The Council has agreed to remedy this injustice.

The complaint

1. Mrs X complained the Council did not secure a suitable full-time education for her son, Y when he stopped attending school in December 2024. Mrs X said she asked the Council to make alternative arrangements in January 2025 when he had been absent for 15 days. She said the Council also delayed the Education, Health and Care (EHC) needs assessment process.

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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 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)
3. 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)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the organisation 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

Law and guidance

EHC Plan

9. 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.

Timescales and process for EHC assessment

10. 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 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).

Unopposed appeals

11. Regulation 45 of the Special Educational Needs and Disability Regulations 2014 applies where a parent has appealed to the First-tier Tribunal, and the Council notifies the Tribunal that it will not oppose the appeal before it submits a response.
12. In these cases, the appeal is to be treated as it was determined in favour of the appellant, and the Tribunal is not required to make an order.
13. If the parent has appealed the Council’s decision to not carry out an EHC needs assessment, the local authority must, within 2 weeks of the date it notified the First-tier Tribunal, notify the child’s parent or the young person that it must make the EHC needs assessment or reassessment.
14. If following the EHC needs assessment the local authority decides that it is necessary for special educational provision to be made for the child or young person in accordance with an EHC plan, it must send the finalised plan to the child’s parent as soon as practicable and in any event within 14 weeks of the date it notified the First-tier Tribunal.

Section 19 duty

15. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

Establishing a section 19 duty

16. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
17. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.

What happened

EHC Plan process

18. In December 2024, Mrs X requested that the Council carry out an EHC needs assessment for Y. In February 2025, the Council decided not to carry out an EHC needs assessment for Y. Mrs X appealed the Council’s decision. In June 2025, the Council conceded and agreed to assess Y’s needs. Fourteen weeks later, the Council issued a final EHC Plan.

Section 19 duty

19. In December 2024, Y stopped attending his mainstream school. In January 2025, Mrs X informed the Council that Y had been absent from school for 15 days. Mrs X complained to the Council that it had not secured full time alternative education.
20. In its complaint response, the Council said the school had not made a referral to the Council’s attendance team and had instead used a private education welfare service (EWS) and was treating Y’s absence as an attendance issue.
21. Mrs X worked with the school to reintegrate Y into lessons. Mrs X escalated her complaint about the Council’s lack of intervention regarding its Section 19 duty to stage 2.
22. The Council responded to Mrs X. It suggested that Mrs X should continue to pursue the issues with Y’s school. The Council reported that Y was making progress in school and the Council was holding regular meetings to discuss gradually increasing Y’s timetable.
23. Mrs X brought her complaint about the lack of alternative provision to the Ombudsman.

Update

24. The Council issued a draft EHC Plan in August, and a final Plan in September 2025. Mrs X appealed this in November 2025. The Council worked with Mrs X and her advocate to amend the Plan, and a new final amended Plan was agreed in January. This was signed and agreed and sent to the Tribunal in January 2026.

My findings

EHC Plan delay

25. The Council was slightly delayed in making its decision to refuse Mrs X’s request to carry out an EHC needs assessment. I do not consider this 2-week delay to amount to fault.
26. The Council issued Y’s final EHC Plan 14 weeks after it conceded the appeal. This is in line with statutory timescale set out in paragraph 14. I have found no fault here.

S19 duty

27. When the Council became aware that Y was not attending school in January 2025, it should have made a Section 19 decision. I have seen no evidence of this.
28. The Council relied on the school to take responsibility for Y’s education and reintegration into classes. This was fault. The responsibility to secure education remained with the Council. It should have assessed Y’s needs and ability to receive alternative provision before reaching a decision as to whether it needed to intervene.
29. The Council’s lack of direct action meant that Y missed a term of suitable education. The Council has agreed to apologise and make Mrs X a symbolic payment of £900 in recognition of this.

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Agreed action

30. Within 4 weeks of my decisions, the Council has agreed to:
1. Apologise to Mrs X for the Council’s failure to make a Section19 decision.
2. Pay Mrs X £300 in recognition of the distress caused by the lack of a Section 19 decision.
3. Pay Mrs X £900 in recognition of the term of missed education that Y experienced.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I find fault causing injustice. The Council has agreed to take action to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman