Summary: Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her daughter and failed to provide suitable alternative education when she was unable to access school. There was a delay in the EHC Plan process and a failure to consider whether the education available at the mainstream primary school was accessible. A remedy including an apology and a symbolic payment is agreed.

The complaint

1. Mrs X complained the Council delayed issuing an EHC Plan for her daughter and failed to provide suitable alternative education when she was unable to access school.
2. Mrs X says this has caused stress and affected the health of the whole family.

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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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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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How I considered this complaint

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

EHC Plan 

8. 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 

9. 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 decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• 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);  
• 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.

Deciding whether to issue an EHC Plan

10. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.

Mediation

11. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
12. A child’s parents or the young person do not have to consider mediation if their disagreement only relates to the placement named in section I or that no placement is named in section I.

Key facts

13. This section sets out the key events in this case and is not intended to be a detailed chronology.

14. Mrs X’s daughter, Z, has autism with a pathological demand avoidance profile. She is situationally mute and has experienced autism burnout. Z stopped attending school in September 2024.
15. The Council received a request for a needs assessment in October 2024 and notified Mrs X that it declined to carry out an assessment of Z’s needs on 4 December. Mrs X appealed the refusal to assess and after mediation the Council re-opened the case on 29 January 2025 and agreed to assess needs. The educational psychologist was allocated on 4 April and her report received by the Council on 15 May.
16. On 22 May the Council made a decision not to issue an EHC Plan. Mrs X appealed the refusal to issue a plan and on 7 August the Council reversed its decision and agreed to issue an EHC Plan. It issued the draft EHC Plan and Mrs X challenged the contents on 19 August. She advised Z was unable to attend school and so was requesting EOTAS (education other than at school) and a personal budget. The Council consulted two schools, one of which was the mainstream primary school where Z was on roll but unable to attend. Both schools indicated they were unable to meet the needs set out in Z’s draft EHC Plan. The current primary school said it should not be named on the final EHC Plan. Despite this representation, the Council issued the final EHC Plan on 14 October naming the current mainstream primary school. However, two weeks later it issued an amended EHC Plan which removed the name of the school and stated a mainstream placement was suitable.
17. Mrs X has submitted an appeal which is due to be heard in November 2026.
18. The Council was aware in November 2024 that Z was not attending school. An inclusion partner became involved with the family at that time. Her initial involvement focused on safeguarding, maintaining contact with the family and school and planning slow reintegration.
19. Team around the family (TAF) meetings were held in 2025 and recognised that Z was unable to access school and that a gradual approach was required. In February 2025, a panel considered a referral from Z’s school for alternative provision under section 19. The Council determined Z did not have any treatable medical conditions that prevented her from attending school. It concluded her absence was related to special educational needs and that most of her needs could be met at the school via its ordinarily available inclusive provision.
20. Discussion took place about online learning and a gradual, no pressure reintegration plan. In June 2025 a robot was delivered to the school which would allow Z to access lessons remotely. However, safeguarding concerns were raised by the school and so it was not used.
21. Z has not attended school since September 2024.

Analysis

22. The Council was aware on 18 November 2024 that Z was not attending school. At this point, the duty to provide a full-time suitable education that was available and accessible for Z fell to the Council. The Council can ask the school to take action on its behalf, but the responsibility to provide education remains with the Council.
23. I can see that an Inclusion Partner was allocated to support the family. The information provided shows that she supported the family from that date including arranging and attending meetings, understanding Z’s difficulties and explaining decisions to the family. The Council made a decision that Z’s non-attendance was not for medical reasons. This is a decision it was entitled to take using its professional judgement. However, it also has a duty to provide a full-time suitable education to children “otherwise” unable to attend. I have not seen evidence to suggest the Council properly considered this.
24. It should have considered whether there was an education that was available and accessible to Z. Z was on roll at a mainstream primary school and so this suggests there was education available to her. However, it was known that she was not attending school and evidence from the Council in response to my enquiries states it was accepted Z was unable to access school. The Council has failed to demonstrate how it assessed whether the education was accessible to Z. There is no evidence of any reintegration plan or other practical action to ensure Z could access the education until June 2025 when a robot for remote learning was sourced. However, this robot was not then used due to concerns raised by the school.
25. The lack of evidence to show the Council considered whether Z could access the available education at the school is fault. However, based on the evidence provided I cannot say what the outcome would have been regarding the provision of alternative education if the Council had properly considered the situation. This caused uncertainty.
26. Regarding the process for assessing Z’s special educational needs and issuing the EHC Plan, I find delay. The request for a needs assessment was made in October 2024 and the final EHC Plan was not issued until 14 October 2025. At this point, Mrs X’s appeal rights engaged enabling her to challenge anything in the EHC Plan she disagreed with. I am aware Mrs X has exercised this right of appeal and the case will be considered by tribunal in November 2026.
27. Councils are required to complete the whole EHC Plan process within 20 weeks. However, the process in this case took about 50 weeks. Within that timescale Mrs X submitted appeals against the decision to refuse to assess and to refuse to issue an EHC Plan. On both occasions the Council reversed the decision without the need for a tribunal hearing. Looking at the timescales in this case, I consider there was delay in the EHC Plan process, which is fault and which frustrated Mrs X’s right of appeal.

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Action

28. To remedy the injustice caused as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Mrs X for the fault 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; and
• Make Mrs X a symbolic payment of £500 to recognise her frustrated appeal rights and uncertainty.
29. The Council should provide us with evidence it has complied with the above actions.
30. Part of our role is also to consider any wider learning for the Council and whether we should recommend any improvements to its services. On this occasion I decided against making any such recommendations. The Ombudsman has upheld complaints concerning similar issues recently and made suitable recommendations so it is not necessary for me to recommend anything that would duplicate that work.

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Decision

31. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman