Summary: The Council delayed completing Miss X’s child, Y’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. It delayed deciding whether to issue Y with an EHC Plan within the statutory timescales, caused by a 34 week delay in obtaining Educational Psychologist advice. It then further delayed issuing Y’s final EHC Plan by 42 weeks after it received the EP advice. The Council was also at fault for failing to maintain oversight of Y’s alternative provision arrangement between 2023 and 2025. These faults caused Miss X and Y distress and delayed Y’s access to the specialist provision and placement specified in the final Plan by two terms. The Council agreed to apologise and make a payment to recognise the injustice the faults caused.

The complaint

1. Miss X complained about the Council’s handling of her child, Y’s education between January 2022 and April 2025. She complained:
• The Council failed to put in place suitable alternative provision for Y after they stopped attending school in January 2022, and
• Significantly delayed completing Y’s Education, Health and Care (EHC) needs assessment which subsequently meant it delayed issuing their final EHC Plan.
2. Miss X said the matter has caused distress and uncertainty and has had a significant impact on Y’s education and development.

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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).

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What I have and have not investigated

7. 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)
8. Although part of the period is later I have used discretion to investigate matters from May 2023 onwards. This includes the EHC needs assessment delays and Y’s education and alternative provision between May 2023 and April 2025. I have considered Miss X’s personal circumstances and decided there are good reasons for her not complaining earlier about this period.
9. I have not investigated matters prior to May 2023 because those matters are late. It was reasonable for Miss X to have complained about the period 2021 to 2023 earlier. I also consider the passage of time since that period means it is more difficult to make fair and robust findings for that period as well as assess injustice.

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How I considered this complaint

10. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
11. Miss 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

Relevant law and guidance

Education, Health and Care Plans

12. 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.
13. 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.

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.
15. There is a right of appeal to the Tribunal against a council’s 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.

EOTAS (Education other than at School)

16. EOTAS is education for children and young people with EHC Plans who cannot attend any educational setting due to their special educational needs. Instead they receive their education and specialist provision either at home or within another external setting that is not a registered educational setting.
17. EOTAS provision is usually delivered and funded using a personal budget. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

Alternative provision and the 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.
19. 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.
20. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
21. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

22. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

Background

23. Miss X has a child, Y. Y has a history of complex mental health needs which has prevented them being able to attend school for a number of years. Y stopped attending primary school in January 2022 during year 6 and there is evidence of Council involvement including Early Help and CAMHS (Child and Adolescent Mental Health Services). Y should have started attending secondary school (School A) in September 2022. Despite various adjustments and engagement strategies they were unable to attend. Records show the Council arranged for Y to attend its Medical Needs provision from January 2023 for three hours of tuition a week. Miss X said Y engaged with this until June 2023 after which the provision broke down and Y stopped attending.

May 2023 onwards

24. In May 2023 Miss X asked the Council to carry out an EHC needs assessment for Y. The Council wrote to Miss X in mid-July 2023 (three weeks late) agreeing to carry out the assessment. In line with statutory timescales the Council should have decided whether to issue Y with an EHC Plan by the start of September 2023. That being the case the Council should then have issued Y’s final EHC Plan by 2 October 2023.
25. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) in July 2023.
26. Y remained out of education for the remainder of 2023 and their engagement with the Medical Needs tuition became rare. Records show both Miss X and School A contacted the Council on a number of occasions making it aware of Y’s struggles. Miss X said the Council told her to wait for the EHC Plan to be issued. There is no evidence of any further oversight or involvement from the Council around Y’s education during 2023 or the early part of 2024.
27. In March 2024 the Medical Needs Service held a review of Y’s provision. Records of the meeting show Y’s attendance at the provision since January 2023 was only 38%. Actions from the review included looking into online maths and for a timetable of lessons at the Medical Needs provision.
28. The EP wrote their report for the EHC needs assessment and provided the Council with it at the end of April 2024. This was a delay of 34 weeks.
29. The EP report indicated Y was no longer able to engage with the Medical Needs provision. It said Y had been accessing a mentorship provision which Miss X had arranged but attendance at this had also declined.
30. Miss X complained to the Council in July 2024 about the delay in completing Y’s EHC needs assessment and the lack of suitable education since Y stopped attending school.
31. The Council issued Y’s draft EHC Plan at the end of August 2024 and sent out consultations to schools. A special school, School B indicated it could meet Y’s needs. Miss X and Y visited School B in September 2024 however Y became anxious and Miss X decided they would not be able to attend it.
32. The Council responded to Miss X’s complaint at stage one of its complaints procedure in October 2024. It apologised for the unacceptable delays in completing Y's EHC needs assessment which it blamed on shortage of EPs and excessive demand. It also cited unprecedented demand on its SEND services and a shortage of staff. With regards to Y’s education the Council said Y was on roll at its Medical Needs provision but accepted from September 2023 onwards that Y’s engagement had declined. It accepted there should have been further discussions around its suitability. The Council said it would continue to work on finalising Y’s EHC Plan. Unhappy with the response Miss X escalated her complaint to stage two of the complaints process.
33. Y remained without formal education for the rest of 2024 and into early 2025. Miss X said she self-funded some science and English tuition as well as an online art course.
34. The Council responded to Miss X’s complaint at stage two at the end of December 2024. The Council reiterated the reasons for the delays in the EHC needs assessment process. The Council accepted inadequate communication around Y’s Medical Needs provision after August 2023. It offered Miss X the following:
• £500 to recognise the impact of the poor communication
• £1000 to acknowledge the delays in the EHC needs assessment process
• £2250 to reflect Y’s lack of education since April 2024 when the EP made it aware of their poor attendance at the Medical Needs provision.

Miss X declined the Council’s offer.

35. In January 2025 the Council allocated Miss X a new caseworker who helped her request an EOTAS package for Y. The Council’s SEND panel agreed to an EOTAS package for Y in March and then issued the final EHC Plan on 9 April 2025.
36. Miss X told us that Y’s EHC Plan and EOTAS package has worked well since April 2025 and Y is back engaging in education.
37. Miss X remained unhappy with the Council however and in June 2025 she complained to us.

The Council’s response to us

38. The Council accepted significant delays in completing Y’s EHC needs assessment and issuing their final EHC Plan. It said this was caused by shortages of EPs and demand.
39. It also accepted a lack of oversight and poor communication around Y’s education and provision when it was clear they were not engaging. The Council accepts that earlier intervention could have been beneficial when it became clear the Medical Needs provision was not meeting Y’s needs.
40. Since the scope of this complaint the Council said it has an ongoing action plan in place around EHC needs assessment delays. This includes recruitment of EPs and case officers and working to reduce the backlog. It said a dedicated team is being commissioned to reduce waiting times for EHC Plans and to improve timeliness in the EHC process.

My findings

41. 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.
42. Following Miss X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by the start of September 2023 and then subsequently issued the final Plan by 2 October 2023.
43. The EP report should have been available to the Council by the end of August 2023 in order for it to have met the October deadline. The EP report was not complete until the end of of April 2024 which was a delay of 34 weeks and fault. It caused a delay in the Council deciding whether to issue Y with an EHC Plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases.
44. However, the delay in obtaining EP advice was not the only reason for the delay in issuing Y’s final EHC Plan. With EP advice in hand the Council should have issued Y’s final Plan by mid-June 2024. It did not do so until 9 April 2025 which is a further delay of 42 weeks which is fault.
45. In total the Council took 80 weeks (18.5 months) to assess Y and issue the final EHC Plan instead of the 20 weeks statutory timescales due to the delay in obtaining EP advice and because of backlogs and staffing issues in its SEND service.
46. During the EHC needs assessment period the Council knew Y was not attending school because it had already arranged for a small amount of tuition at the Medical Needs provision. The Council has accepted there was a lack of oversight and consideration of Y’s education between May 2023 and April 2025. It has further accepted it should have done more to support Y when it became clear Y was not engaging with the Medical Needs Provision on receipt of the EP report. All of this was fault.
47. The faults outlined above have caused both Y and Miss X an injustice. It is not clear given Y’s circumstances, particularly between 2023 and 2024 how much education Y could have coped with given they struggled to attend the three hours in place at the Medical Needs provision. However the lack of oversight around Y’s education caused uncertainty around whether more could have been done to support Y.
48. Further the significant EHC needs assessment delays caused distress, frustration and more uncertainty. There was a large period of delay following receipt of the EP advice which delayed Y’s access to the EHC Plan. On balance, had the Council not delayed following receipt of the EP advice it is likely Y could have had access to the EOTAS package and specialist provision by September 2024 for the start of the 2024/25 academic year. This equates to two terms of lost provision.
49. As outlined above the Council already has an ongoing action and improvement plan to reduce the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. We are continuing to monitor the Council’s ongoing work to reduce the backlog through our casework so I have not made a further service improvement with regards to EHC needs assessment delays.

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Action

50. Within one month of the final decision the Council agreed to complete the following actions:
1. Apologise to Miss X and Y for the distress and uncertainty caused by the EHC needs assessment delays, the lack of oversight around Y’s education between 2023 and 2025 and for Y’s two terms of lost specialist provision. 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. Pay Miss X a total of £6000 to acknowledge:
1. The distress, frustration 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.
2. Y’s loss of specialist provision in the EHC Plan between September 2024 and April 2025, caused by the delay in issuing Y’s final EHC Plan after it had obtained EP advice during the EHC needs assessment process.
3. The uncertainty caused by the lack of oversight and consideration of Y’s education and Medical Needs provision.
4. The distress and uncertainty caused to Miss X.
51. Within two months of the final decision the Council should complete an action plan to ensure it has sufficient processes in place to maintain oversight of children out of school receiving alternative provision. The action plan should ensure the Council has processes in place to maintain regular communication with both the provision and parents and ensure provision is reviewed for its suitability. If this recommendation has been or is being addressed as part of any ongoing action or improvement plan the Council should provide relevant evidence.
52. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman