Summary: Mrs X complained about the Council’s response to her request for support for her son (Y) who could not attend school because of his health needs. Mrs X also complained about the Council’s failure to keep the statutory timescales for Y’s Education Health and Care needs assessment. We found fault with the Council’s failure to check the suitability of educational arrangements made by Y’s school despite regular communication from Mrs X. We also found fault with the Council’s delays with Y’s Education Health and Care needs assessment, with its communication with Mrs X and its record-keeping. The Council’s fault caused injustice to Y and Mrs X. The Council has agreed to apologise, arrange a meeting to discuss Y’s education and issue Y’s final Education Health and Care Plan. The Council has also agreed to make payments to recognise injustice caused to Y and Mrs X and carry out service improvement.

The complaint

1. Mrs X complains the Council failed to respond properly to her request for alternative educational provision for her child (Y) and failed to respond to her request for refund of costs she had incurred in making provision privately. As a result, Y missed educational provision and she was caused uncertainty and suffered significant financial loss.
2. Mrs X also complains about the delays with Y’s Education Health and Care (EHC) needs assessment. This caused her distress and meant she spent much time contacting the Council and asking for updates.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
8. 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)
9. 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

10. I have not investigated anything that happened before July 2024, which is 12 months from when Mrs X came to us. Mrs X said that she could not complain about Y’s education before as she was dealing with the shock of Y’s medical, life-changing diagnosis and had to support his increased care needs. However sympathetic I am to Mrs X’s circumstances, these reasons would not be sufficient to justify extending my investigation by a year. This is because raising a complaint is straightforward and not time-consuming and could have been done at any point in 2023/2024 or 2024/2025.
11. After complaining to us about the lack of alternative provision for Y, Mrs X raised another complaint about the Council’s delay with the EHC needs assessment process. The Council responded to this complaint in January 2026, accepting its fault. This complaint is not, therefore, premature and I included it in my investigation.
12. Although I did not investigate the events after mid-January 2026, when the Council provided its response to Mrs X’s complaint about the delays with Y’s EHC needs assessment, I considered whether there was ongoing injustice caused by the Council’s delays with Y’s EHC needs assessment and the alternative provision duty.

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How I considered this complaint

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

Alternative provision

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.
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.
18. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
19. 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.

Statutory guidance

20. Statutory guidance ‘Arranging education for children who cannot attend school because of health needs’ from December 2023 (the Guidance) describes what can be expected from schools and councils when a child cannot attend his school for medical reasons. It says:
1. where possible the child’s health needs should be managed by their school;
2. councils do not need to become involved in educational arrangements for children with medical needs unless they have reason to believe that the education provided by the school is unsuitable;
3. when it is clear that a child will be away from school for 15 days or more either consecutively or over the course of a school year, the council should arrange suitable alternative provision;
4. education provided for children who do not attend school due to their health needs should be of good quality, as far as possible equivalent to that provided in mainstream schools. It should be suitable and flexible, appropriate to children’s needs;
5. for children with unpredictable pattern of illness their council, school, relevant medical practitioners and the parents should discuss how to best meet the child’s needs. This could be through individual support, arranging alternative provision or by supporting them at home and back into school after each absence;
6. children should be involved in decisions about any alternative provision from the start.

EHC needs assessment

21. 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:
• 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 needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• where councils decide it is not necessary to issue an EHC Plan for a child, they should notify the parents within 16 weeks from the date they received request for an EHC needs assessment;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

What happened

Background

22. In June 2023 Y was diagnosed with a chronic disease, which affected his school attendance. The disease has unpredictable patterns.
23. In 2023/2024 Mrs X kept contacting Y’s school (the School) and the Council asking for their support with Y’s education as he could not attend school regularly due to his health needs and medical appointments.
24. Since 2022 Y has been receiving privately arranged weekly tutoring sessions of 50 minutes. Mrs X arranged them as Y was falling behind with his learning.

Y’s education

25. In September 2024 Mrs X contacted the Council asking about its duty to arrange education for children who could not attend their schools for health reasons for more than 15 days. The Council’s officer told Mrs X this duty would not apply to Y.
26. In spring 2025 Mrs X contacted the Council again but did not receive a response.
27. The Council’s officer met with the School’s staff to check how the School was addressing Y’s absences. The Council advised that if the School could not meet Y’s needs, it should make a referral to the Council to consider alternative provision.
28. At the beginning of May 2025 the School communicated with the Council about alternative provision for Y. After another contact from the School at the end of May, the Council sent an alternative provision referral form.
29. In mid-May 2025 Mrs X complained about the lack of alternative arrangements for Y’s education. She said Y missed much school learning because of his health needs and frequent absences.
30. The Council responded a month later. Because Y had a chronic condition, it said, it was the School’s responsibility to make reasonable adjustments to ensure he could access education as well as to reduce any absences related to his illness. In the correspondence with the Member of Parliament (MP) the Council reiterated this position stating that if a child is unable to attend school for more than 15 days even if the council becomes involved in arranging alternative provision, it would be the school’s responsibility to seek and fund appropriate educational support. The Council would normally get involved if the child has an extended stay in hospital or is medically unable to attend school for a significant period.
31. In stage two response to Mrs X’s complaint from mid-July 2025 the Council said that in May 2025 its officer had found out Y’s health condition had been managed and adjustments made through Y’s health plan. If Y needed some extra support, the School should send a request to the Council to consider Y’s case at the alternative provision panel. The Council told Mrs X she would be invited to the panel meeting to ensure she could collaborate in taking decisions about Y.
32. At the end of July 2025 Mrs X complained to us.
33. In the school year 2024/2025 Y missed 129 school sessions, which amounts to 33% of the overall school sessions.
34. In the second week of December 2025 the School contacted the Council about Y’s continuing long absence, totalling 18 days since the beginning of the school year. The Council reminded the School of the need to fill in and send an alternative provision referral form. The next day the School sent a completed referral form.
35. In mid-December 2025 the Council told Mrs X the School was responsible for monitoring Y’s school attendance and reviewing it regularly. It could send an alternative provision referral form at any time.
36. In the third week of February 2026 the Council told Mrs X it would consider the School’s request for alternative provision for Y at the panel meeting at the beginning of March 2026. The Council did not invite Mrs X to the panel meeting and did not tell her the outcome.
37. In mid-April 2026 a tutoring company commissioned by the Council contacted the School and Mrs X to arrange two weekly tutoring sessions for Y of 50 minutes each.

EHC needs assessment

38. Mrs X asked the Council to carry out an assessment of Y’s educational, health and care needs in the third week of March 2025. In mid-April the Council decided not to carry out an assessment.
39. Mrs X asked for a mediation. At the end of August 2025 the Council changed its position and decided to assess Y’s needs.
40. In January 2026, in its response to Mrs X’s complaint the Council explained the delay in Y’s EHC needs assessment was caused by the difficulties with securing Educational Psychology (EP) advice. Y was added to the highest-priority locum list. The Council confirmed it should receive the advice within the next few weeks.
41. Following Y’s assessment by the EP in mid-February 2026, the Council decided to issue an EHC Plan for Y.

Analysis

Alternative provision

42. From 2023/2024 the Council knew about Y’s health difficulties and their impact on his attendance. The Council’s response to Mrs X and the School was that it was the School’s responsibility to manage Y’s health needs. If the School needed support it would have to file an alternative provision referral form.
43. As outlined in the Guidance (paragraph 20b) councils do not need to get involved in making educational arrangements for children with medical needs unless they have reason to believe the education provided by the school is unsuitable.
44. Until the beginning of March 2026, when Y’s educational needs were discussed at the alternative provision panel, the Council had failed to check whether the School was adequately supporting Y when he could not attend school. This was despite Mrs X’s regular communication, complaints and contacts from her MP and a councillor. The Council failed to satisfy itself that Y was receiving suitable education.
45. The Council failure to check suitability of Y’s education and its reliance on the School for making necessary arrangements lasted many months. This is fault as the Council should have:
• decided if it needed to arrange Y’s alternative provision. The Council was aware of Y’s irregular attendance caused by his health needs. As pointed out in paragraph 20c the child’s absence for over 15 days, not necessarily consecutive, triggers councils’ alternative provision duty;
• checked suitability of the educational arrangements made for Y by the School. This is because Mrs X kept contacting the Council about Y’s education;
• arranged a discussion with the School, relevant medical practitioners and Y’s parents about the best way to meet Y’s needs;
• involved Y in a decision about his education.
46. The Council’s reliance on schools to follow the correct process of sending completed alternative provision referral forms is of concern. It means that if a school fails to follow the right process, the child unable to attend school because of their health needs will be left without educational support they need. Such approach undermines the Council’s duty to ensure all children of compulsory school age in its area have access to good quality education, notwithstanding any special educational or health needs they might have.
47. The Council’s fault caused injustice to Y and Mrs X.
1. injustice caused to Y – if the Council had taken responsibility for checking suitability of educational arrangements made for Y by the School, it might have decided Y needed more support. On the balance of probabilities I consider that it would have decided Y needed some extra support provided in a flexible way when he could not attend school. This is because Y’s absences were significant and the School was not offering anything beyond sending work sheets. Besides, when the Council finally considered Y’s educational circumstances in March 2026, it decided he needed individual tutoring sessions to be delivered at home.
2. Injustice caused to Mrs X – Mrs X was increasingly upset about the lack of support for Y’s education. She had to manage Y’s increased care needs and his mental health which was affected by his illness and its impact on his ability to attend school. Falling behind with learning contributed to Y’s school anxiety and Mrs X was distressed at the Council’s non-engagement.

EHC needs assessment

48. Mrs X asked for an EHC needs assessment for Y in the third week of March 2025. The Council should have responded to this request within six weeks and, if agreed, made its decision on whether to issue Y’s EHC Plan by mid-July 2025.
49. The Council decided not to carry out Y’s EHC needs assessment at the end of April 2025. Following the mediation, at the end of August 2025 the Council changed its position and decided to assess Y’s needs. Between April and August 2025 Y’s needs did not change and no new professional advice was obtained, which would justify the change of the Council’s position. Therefore I applied the principle introduced in the court judgement of 5 December 2023 R (on the application of W) v Hertfordshire County Council [2023] EWHC 3138 (Admin). The principle is to apply the usual timescales for the EHC Plan process in cases where the council changes its position on assessing child’s Educational, Health and Care needs without the change of child’s needs, new evidence or engagement in the legal dispute.
50. The Council’s delay of eight months in deciding whether to issue an EHC Plan for Y is fault. Some of this delay was caused by the change in the Council’s decision on the EHC needs assessment for Y. The rest of the delay was caused by the shortage of EPs which is a nation-wide problem and outside the Council’s control. Therefore we consider this part as a service failure rather than maladministration.
51. The Council’s delay caused injustice to Mrs X as she remained uncertain whether Y should be getting specific provision from the School and external agencies to support him with his learning. Mrs X frequently contacted the Council to ask for updates and spent much time on this communication and complaining. She was distressed by the delay, especially since Y had long periods out of school and Mrs X needed support to ensure he received suitable education.
52. Following the assessment of Y’s EHC needs the Council decided to issue an EHC Plan for him. The Council’s delay caused injustice to Y as assessing his needs in a timely manner would mean he could get extra support much sooner.

Communication

53. In our guidance notes ‘Principles of good administrative Practice’ we set up standards we expect from councils when performing their functions. Councils should:
• provide effective services;
• ensure people can access services easily;
• inform people who use services what they can expect and what the organisation expects of them;
• respond to people’s needs flexibly and, where appropriate, coordinate a response with other service providers;
• take responsibility for their actions.
54. Timely and effective communication is necessary to provide the required standard of service. This did not happen for Mrs X. The Council failed to communicate with her and often failed to respond to her correspondence and telephone calls. The Council failed to act on its commitments. In its stage two response to Mrs X’s complaint about Y’s education the Council told Mrs X she would be invited to the alternative provision panel meeting, which did not happen.
55. The Council’s failure to provide timely and consistent communication to Mrs X is fault. Mrs X was distressed as she could not get the Council’s position on Y’s education and could not challenge it. She was also frustrated by the delays with Y’s EHC assessment process and the lack of updates on its progress.

Record keeping

56. In our guide ‘Principles of good administrative Practice’ we explain that to provide their services at the expected standard councils should be open and accountable. This can only be achieved when councils keep complete and accurate records.
57. The Council did not keep complete records of its communication with the School and Mrs X. It could not tell me when it first found out about Y’s irregular school attendance. It also failed to record Mrs X’s telephone calls.
58. The Council’s failure to keep proper records for Y is fault. It caused injustice to Mrs X as the incompleteness of records would have affected the delivery of the Council’s services. It also made scrutiny of the Council’s actions more difficult. This caused Mrs X further distress.

Action

59. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of the final decision:
• apologise to Y and Mrs X for the injustice caused to them by the faults identified. 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;
• arrange a meeting with Mrs X, Y’s school representative and possibly medical staff involved in supporting Y to discuss his needs and the way to arrange his education to ensure his health needs are addressed. Prior to this meeting the Council will obtain, if possible, Y’s views and wishes on his education and they will be considered as part of the discussion. If it is not possible to secure medical staff’s attendance at the meeting, the Council will consider Y’s health needs on the basis of the medical evidence available. The Council will send us notes from this meeting;
• issue Y’s final EHC Plan;
• pay Mrs X £2,500 in recognition of the alternative provision that would have been arranged for Y if not for the Council’s failings;
• pay Mrs X £800 to recognise her and Y’s injustice caused by the delay in the EHC needs assessment;
• pay Mrs X £300 to recognise the distress caused to her by the Council’s failing to communicate with her adequately.

The Council will provide the evidence that it has completed the above actions.

60. We also recommend the Council within three months of the final decision:
1. review and amend its process when notified about children’s non-attendance for health reasons. The revised process should include checking suitability of the educational arrangements made by the school when queried by parents. The Council should ensure that a meeting with parents, school and medical staff involved with the child is part of this process;
2. review record keeping in its school attendance and special educational needs teams and prepare a plan of action to ensure all communication with schools and parents is recorded and accessible;

The Council should provide us with evidence it has complied with the above actions.

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Decision

61. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman