Summary: The Council was at fault in delaying in issuing an Education, Health and Care Plan for child Y. It was also at fault for failing to arrange suitable alternative educational provision for Y. The Council’s handling of Mr X’s complaint was poor. The Council’s faults caused Y lost educational provision, and caused Mr X uncertainty, frustration, put him to time and trouble and delayed his appeal rights. The Council agreed to apologise and make payments to Mr X to remedy the injustice caused by its faults. It has also agreed recommendations to improve its services.

The complaint

1. Mr X complained that the Council delayed in carrying out an assessment of his child Y’s Education, Health and Care (EHC) needs and in issuing an EHC Plan. He also complained the Council did not provide Y with suitable education when they stopped attending school.
2. Mr X said the Council’s faults meant Y had to wait longer than they should have to receive an EHC Plan. They were without education during that time, during which they suffered socially, emotionally and academically. The delay caused the family stress, uncertainty, frustration, and financial losses.
3. Mr X wants the Council to remedy his complaint by acknowledging its faults, apologising, making him a symbolic payment, and taking action to prevent a reoccurrence.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.

Matters before September 2024

8. 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)
9. Mr X complained to us in September 2025 so matters that occurred before September 2024 are late. However, the school informed the Council of Y’s absence in May 2024, and this was also when the school requested an EHC needs assessment for Y. I consider this is the most appropriate point to begin my investigation, and so I have investigated matters from May 2024 onwards.

Matters after March 2025

10. 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.
11. A child or young person with special educational needs may have an 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 (sections B, F and I). Only the Tribunal or the council can do this. 
12. 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)
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.
16. Mr X appealed the content of the EHC Plan that the Council issued for Y in March 2025. Because that appeal was about his disagreement with the special educational provision and the educational placement named in that Plan, we cannot investigate matters that occurred after that appeal right arose in March 2025.

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How I considered this complaint

17. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance. I discussed Mr X’s complaint with him on the telephone.
18. Mr 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

Law, policy and guidance

Timescales and process for EHC assessment 

19. 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 from the time the assessment was requested.
• 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.

Section 19 duty

20. Section 19 of the Education Act 1996 says that the council 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

21. 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.
22. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
23. 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.

Guide for practitioners

24. We publish good practice guidance on how we expect councils to take responsibility for ensuring pupils who are out of school receive suitable full-time education: Out of school, out of sight? (Updated August 2023).
25. 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.

The Council’s complaints policy

26. The Council’s own policy includes that it will usually respond to complaints within 20 working days (four weeks). If the complaint is unusually complex it may need longer but will let the complainant know if this is the case. The Council operates a one-stage complaint process, after which complainants can approach the Ombudsman. The Council will provide a stage two response if it ignored key information at stage one, sees new evidence, or misunderstood the original complaint.

What happened

27. This section sets out the key events in this case and is not intended to be a detailed chronology. I have not investigated matters (other than the handling of Mr X’s complaint) after March 2025, which are included for context only.
28. On 17 May 2024, Y’s school asked the Council to carry out an EHC needs assessment for them.
29. Also in mid-May, Y’s school discussed Y’s support needs with several members of Council staff (who did not work in the SEND department). The school told the Council that Y had “completely stopped attending school”. Y did not attend school after this time.
30. The Council agreed to carry out an EHC needs assessment in early July 2024. It obtained all the advice it needed to inform the assessment by the end of August 2024.
31. In mid-October 2024, the Council agreed to issue an EHC Plan for Y. It issued a draft Plan at the end of October 2024.
32. Mr X submitted his comments on the draft Plan in late November 2024. The Council issued a second draft Plan in mid-December 2024.
33. The Council discussed the second draft Plan with Mr X during January and February 2025. It consulted with schools in late February 2025.
34. In late March 2025, Mr X complained to the Council about its failure to provide a suitable education for Y under Section 19 and the delay in issuing a final EHC Plan. On 25 March, the Council issued a final EHC Plan for Y, naming the mainstream school at which they were already on roll. Y did not attend the school or otherwise access the provision included in the Plan.
35. The Council’s SEND team replied to Mr X’s complaint at stage one in mid-May 2025. The response said an EHC Plan had been issued. It said if Mr X disagreed with the Council’s view that the placement could meet Y’s needs, he had a right to appeal it. The Council said it had advised the school to refer Y to the Specialist Learning Centre (SLC) for children who are “not currently fit” to attend school. It said the school had made the referral, the Council had agreed it, and that this was Section 19 provision.
36. Later that day, Mr X asked whether this was the Council’s formal response to his complaint, as it did not deal with all the issues he had raised. He noted that the Council had not sent him a copy of the EHC Plan it had issued, nor informed him of his right of appeal.
37. The Council’s SEND team replied further that day. The Council explained the Plan had been issued on its online platform and sent to the correct email address. It apologised that the covering letter that accompanied the Plan did not include the need to consider mediation before appealing. With reference to Mr X’s complaint about a lack of Section 19 provision, the Council said: “The attendance guidance is clear that schools have a responsibility to inform the LA when a child is absent for 15 days or more through illness, and also that they are responsible for commissioning appropriate services for children on roll. When I was made aware of the case, we signposted the school to refer to our Section 19 provision. […] I am satisfied that the service has signposted and acted appropriately”.
38. The response said Y’s school had made a referral to the Council in late March 2025 and a placement within the SLC had been agreed in early May. It did not address Mr X’s complaint of delay in the EHC needs assessment and in the issuing of Y’s Plan.
39. The SLC provided Y with 10 hours of online tuition per week from May 2025 onwards. Y engaged with this provision.
40. In June 2025, Mr X submitted an appeal to the Tribunal against sections B, F and I of the EHC Plan.
41. Mr X escalated his complaint in late June. He said the Council’s claim that it had fulfilled its duties by signposting the school to the referral pathway was not good enough. He said the statutory responsibility for Y’s education rested with the Council and could not be delegated to the school.
42. The Council responded to Mr X’s complaint at stage two in early August. It said:
• Y’s school had not informed the Council sooner than March 2025 that Y was unable to attend school, and this was not reflected on their attendance register for Y.
• The Council had acted in accordance with Section 19 processes and decision making as soon as it had the relevant and correct information from Y’s school.
• “The 20 week statutory [EHC] assessment process and 15 days statutory consultation process ended on 13 November 2024 and timescales were adhered to.”
• Delays in issuing the EHC Plan after mid-November were caused by Mr X’s requests for amendments to the first and second drafts, and for a personal budget and provision of unspecified EOTAS (Education Other Than At School). The Council partly upheld this aspect of Mr X’s complaint as Y’s Plan was issued late.
43. Mr X escalated his complaint to the Ombudsman in September 2025.

The Council’s response to my enquiries

44. In its response to my enquiries, the Council said:

“The Council does not accept that it was formally made aware in May 2024 that [Y] was not attending school. […] Two Council officers were copied into correspondence. However:

• Neither officer had case responsibility for [Y],
• They were not part of the service responsible for attendance monitoring, and
• The information was not escalated through the Council’s established reporting or referral processes.

The Council’s primary mechanism for monitoring attendance is via school-submitted data […]. During this period, [Y]’s absence was recorded as authorised by the school and did not trigger concerns within those systems.

While the Council accepts that information can be shared informally, being copied into correspondence does not in itself constitute formal notification to the Council, particularly where it is not directed to the appropriate service or reflected within official data systems. On that basis, the Council did not identify the need to consider its Section 19 duty at that time.”

My findings

Delay in issuing an EHC Plan

45. Y’s school asked the Council to carry out an EHC needs assessment on 17 May 2024. The resulting EHC Plan should have been issued within 20 weeks of the request, which was 4 October 2024. The Council’s response to Mr X’s complaint referred to a target issue date of 13 November which suggests a misunderstanding of the process and is fault. The assessment process was carried out in time, but the final Plan was not issued until 25 March 2025. This is a delay of nearly six months.
46. The Council said that the delay was caused by Mr X delaying in submitting comments on the draft, requesting a meeting to discuss those comments, making further amendments to a second draft, and requesting a personal budget and unspecified EOTAS.
47. I find that, while all the delay was not the fault of the Council, the Council should still have issued the final Plan sooner (even if it could not secure Mr X’s agreement with its contents). On the balance of probabilities, I do not consider the delay led to Y missing special educational provision. That is because they did not access the secured provision that was included in the Plan issued in March 2025. And so, on balance I find they would not have accessed it if it been in place sooner. However, the Council’s fault caused Mr X uncertainty about the special educational provision the Plan would include for Y and delayed his right of appeal. The Council partially upheld this aspect of Mr X’s complaint but I consider there is outstanding injustice.

Section 19 duties

48. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and then decide whether it has a duty to make alternative educational provision. The Council said that it was not “formally made aware” of Y’s non-attendance at school between May 2024 and March 2025. However, Section 19 and the Code do not refer to a “formal notification” of absence being required to prompt consideration of Section 19 – an awareness is sufficient. The Council also said the officers who were informed of Y’s absence were not part of the SEND team. Those officers were, however, members of Council staff, and any failure to escalate the matter “through the Council’s established reporting or referral processes” was fault on the Council’s part. And so, I find the Council should have considered its Section 19 duties in May 2024. On balance, I consider that, had it done so, it would have arranged provision for Y in the same form that it did from March 2025; that is, 10 hours per week of online tuition. And, as Y was able to engage with that provision when the Council did arrange it, they likely would have been able to do so from May 2024. I find that the Council’s actions caused Y missed educational provision between late May 2024 and late March 2025, when the Council issued their EHC Plan.

Complaint handling

49. The Council’s first two responses to Mr X’s complaint, sent on the same day in May 2025, were of poor quality.
50. The first response:
• Gave only a brief response to one key area of Mr X’s complaint, the lack of alternative provision at that time. It did not engage with his complaints about the lack of alternative provision since the previous May or the delay in issuing an EHC Plan for Y;
• Did not explain the next steps in the Council’s complaints procedure.
51. The second response:
• Explained that it had issued Y’s EHC Plan to the correct email address for Mr X and also uploaded it to the Council’s online platform. The Council was not at fault in this regard;
• Apologised for the Council’s failure to mention the need to consider mediation prior to appeal in the cover letter that accompanied Y’s EHC Plan. This was fault, that the Council remedied by apologising;
• Again, did not engage with Mr X’s complaints about the lack of alternative provision since the previous May or the delay in issuing an EHC Plan for Y;
• Included indecipherable jargon such as “having checked on the Wonde questioned why [Y] was C-coded”;
• Did not offer Mr X the option of escalating his complaint to the Ombudsman, as set out in its own complaints procedure;
• Gave an explanation for failing to arrange alternative provision for Y that relied on the school’s responsibility to “commission appropriate services for children on roll”, and the Council’s actions in signposting the school to make a referral to the Council for section 19 provision. Neither of these factors detracted from the Council’s statutory duty to arrange alternative provision under Section 19. This explanation was fault.
52. Both responses were delayed beyond the Council’s own target response time of 20 working days. No explanation or apology was offered for the delay.
53. The errors, omissions, and inaccuracies in the Council’s stage one responses were fault. They caused Mr X frustration and uncertainty, and caused him time and trouble in that he felt compelled to pursue his complaint further.
54. In response to a draft version of this decision statement, the Council acknowledged the failings I have identified in its handling of Mr X’s complaint. It told me that, in the year since Mr X complained, it has:
• Reviewed its complaint policy and is satisfied it now fulfils the Ombudsman’s Complaint Handling Code, which sets out best practice in how councils should deal with complaints;
• Reviewed the letter templates it uses for stage one and stage two complaint responses, and is satisfied that the Council is not regularly responding to complaints without using those templates;
• Arranged refresher training for officers responsible for investigating and responding to complaints for later this year; and
• Improved the timeliness of complaint responses to 86%.
55. I am satisfied with the actions the Council has taken to improve its policy and processes for handling complaints. And so, I do not need to make a recommendation for it to improve its service in this respect. 

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Action

56. The Council has agreed that, within one month of my final decision, it will:
1. Apologise to Mr X for the injustice caused by the faults I have 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;
2. Make Mr X a payment of £300 in recognition of the uncertainty and delayed appeal rights caused by its delay in issuing a final EHC Plan for Y;
3. Make Mr X a payment of £4125, for Y’s benefit, in recognition of the injustice caused to Y by the loss of suitable alternative educational provision between late May 2024 and late March 2025 (two and a half terms at a rate of £1650 per term); and
4. Make Mr X a payment of £200 in recognition of the injustice caused by its poor handling of his complaint.
57. The Council has agreed that, within three months of my final decision, it will:
1. Review the timescales it works to during the EHC needs assessment and planning process to ensure they meet the statutory timescales, and correct these if necessary; and
2. Remind staff in related services of its established reporting processes for referring information about school non-attendance to the SEND team (where relevant).
58. The Council should provide us with evidence it has complied with the above actions.

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Decision

59. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman