Summary: Dr X says the Council mishandled her application for an Education, Health and Care Plan for her daughter Y. Dr X is also unhappy with the placement named in Y’s Education, Health and Care Plan and says the Council did not follow the correct process to decide the placement. Dr X also says the Council failed to consider its Section 19 duty when Y was unable to attend school. Dr X has also complained the Council failed to respond to her complaint within its published timescales. Dr X says this caused her and her family distress and inconvenience and Y to miss education. We have found fault in the actions for its delayed complaint response. The Council has agreed to write to Dr X to issue an apology.

The complaint

1. Dr X says the Council mishandled her application for an Education, Health and Care (EHC) Plan for her daughter Y. Dr X is also unhappy with the placement named in Y’s EHC Plan and says the Council did not follow the correct process to decide the placement. Dr X also says the Council failed to consider its Section 19 duty when Y was unable to attend school. Dr X has also complained the Council failed to respond to her complaint within its published timescales.
2. Dr X says this caused her and her family distress and inconvenience and Y to miss education.

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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. 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)
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. I have not considered Dr X’s complaints about the placement which was named in Y’s EHC Plan or the process the Council took to decide this. This is because Dr X has appealed to the tribunal about this.
8. I have also not considered Dr X’s complaint about the Council failing to provide alternative provision from April 2025. This is because Dr X has disputed the placement named in Y’s EHC Plan and in my view, this is inextricably linked to the issues Dr X has appealed at Tribunal.

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How I considered this complaint

9. I considered evidence provided by Dr X and the Council as well as relevant law, policy and guidance.
10. Dr X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

Law and Guidance

EHC Plans

11. 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. 
• 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)

12. 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.
13. The courts have established that if someone has appealed to the 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)
14. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
15. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
16. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  

Alternative provision

17. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a compulsory school-aged 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.

Council’s complaint procedure

18. The Councils complaint procedure says it will respond to stage one complaints within 20 working days. If the complaint is complex, the Council’s procedure says it keep people updated if it is going to take longer to respond.
19. The Council’s complaint procedure says it will respond to stage two complaints within 20 working days. If the complaint is complex, the Council’s procedure says it will keep people updated if it is going to take longer to respond.

What happened

20. Dr X requested an Education, Health and Care Needs Assessment for Y in mid-September 2024.
21. The Council issued a decision not to assess Y in October 2024.
22. Dr X appealed this decision to the tribunal in November 2024 following mediation. The Council submitted its response to tribunal in late January 2025 and conceded the appeal and agreed to assess Y.
23. Y stopped attending school in around January 2025. Dr X emailed the Council in early February 2025 to raise concerns about the decline in Y’s attendance. Dr X sent a further email to the Council in late February 2025.
24. Dr X contacted the Council again in early March 2025 and reported a further deterioration in Y's attendance. Dr X said CAMHS had become involved and a multi-disciplinary meeting and home visit were arranged.
25. Dr X emailed the Council in late March and updated it about Y’s difficulties attending school and other difficulties.
26. The Council issued a draft EHC Plan in late March 2025. Dr X responded to the draft EHC Plan and provided a preference for Y’s placement.
27. The Council issued a final EHC Plan in mid-April 2025 and an amended version in mid-June 2025.
28. Dr X raised a complaint with the Council in mid-June 2025 and said she was unhappy with the placement named in Section I and that parental preferences for placement had not been consulted.
29. The Council issued a response to Dr X’s complaint in early-July 2025 and said it had named a mainstream school as it believed this could meet Y’s needs.
30. Dr X raised a further complaint the same day and said the Council had failed to act on the parental preferences put forward for placement and that it had named an inadequate placement.
31. Dr X appealed to the Tribunal in mid-July 2025 in relation to sections B, F and I.
32. Dr X emailed the Council to request a response to her complaint in early August 2025 and submitted a further complaint. Dr X told the Council it had failed to respond to her previous complaint within its advertised timescales and said she was unhappy the Council had not put alternative provision in place for Y.
33. The Council emailed Dr X the same day to say it would issue a response to her complaint by early September 2025.
34. The Council then issued a stage two complaint response to Dr X in mid-August 2025 and said it acknowledged the parental preference on placement and would review this at panel. It also said the school had recorded Y’s absence as unauthorised and as such section 19 did not apply. The Council also explained that Y’s school had been working with an early intervention team.
35. Dr X responded to the Council the same day to say she felt it had misrepresented the situation and that her complaint had not been answered within 20 working days. Dr X also said an officer had provided wrong information about when she could appeal the plan.
36. The Council issued a final response in early October 2025 which apologised for not consulting parental preference settings. It also said the officer who provided the wrong information clarified it at the time in discussions with Dr X.

Analysis

EHC Plans

37. Dr X requested an EHCNA in mid-September 2024. The Council issued a decision not to assess in October 2024. Dr X appealed this and the Council then agreed to assess Y in January 2025.
38. The Council issued a final EHC Plan in mid-April 2025.
39. The Council issued Y’s EHC Plan in line with timescales following the appeal. I, therefore, have not found fault in the Council’s actions.

Alternative provision

40. The Council has said that it’s Section 19 duty did not apply as Y had access to suitable education in the period considered.
41. The Council has evidenced it made efforts alongside the school to support Y back into school. The Council also evidenced it involved its Early Intervention Officer to try to reintegrate Y into school.
42. Dr X said she did not recognise the Council’s version of the efforts it had made to reintegrate Y into school. However, the evidence shows the school attempted a reduced timetable, zones of regulation and completed a home visit. The school were also in contact with the Early Intervention Team during the period investigated.
43. In addition, as the Council were in the process of issuing Y’s EHC Plan in the period considered it would also have been considering what placement was suitable for Y based on the information obtained as part of the EHCNA process.
44. I have not found fault in the actions of the Council when assessing if a Section 19 duty applied.

Complaint procedure

45. The Council issued a stage one response to Dr X within the 20 days noted in its complaint procedure.
46. However, the Council did not respond to Dr X’s stage two complaint within 20 days or explain it would take longer to issue a response until Dr X chased this. This is fault and would have caused Dr X distress and inconvenience. The Council then advised the response would be delayed and issued a response within the updated timescale given.

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Action

47. Within four weeks of a final decision the Council should:

• Write to Dr X to apologise for the distress and frustration caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

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

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Decision

49. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman