Summary: Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her son and failed to provide suitable alternative education when he 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 son, Y, and failed to provide suitable alternative education when he 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.

Mediation

10. 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.
11. 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

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. Mrs X’s son, Y, has autism and struggled to access school from September 2024. Mrs X says that she took Y to school every day for the year. After the first day he developed a tic and was biting his nails until they were bleeding. He managed to access school for two days. After this a teaching assistant met Y in the playground but he still did not enter the school building.
14. The Council became aware that Y was not accessing school at a meeting in November 2024. A request for a needs assessment was submitted in December 2024. The Council refused to carry out a needs assessment on 22 January. Mrs X sought mediation and on 12 March the Council re-opened the case and the assessment process continued. The Council appointed an Educational Psychologist (EP) on 13 June and received the EP report on 23 June. The Council made the decision to issue an EHC Plan on 10 July. The Council has not provided details of when the draft EHC Plan was issued but confirms it issued the final EHC Plan on 14 October 2025.
15. The final EHC Plan named mainstream as the school type but no actual school was named. Mrs X has appealed as she is seeking EOTAS (education other than at school) for Y. The tribunal hearing is scheduled for 27 November 2026.
16. Mrs X attended Team around the Family (TAF) meetings with the school and council representatives. Mrs X was concerned Y was not accessing education and so asked about alternative education provision. The Council’s position is that it is the role of the school to work alongside the parents to decide and make an application for Section 19 alternative provision. It says that as the school did not make an application, it made no consideration of whether it owed a Section 19 duty as the lack of an application suggests the school is able to meet the needs of the child.

Analysis

17. The Council was aware on 18 November 2024 that Y was not accessing school. At this point, the duty to provide a full-time suitable education that was available and accessible for Y 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.
18. I can see that an Inclusion Partner was allocated to support the family (Mrs X has another autistic child who was also experiencing issues accessing education). The information provided shows the Inclusion Partner supported the family from that date including arranging and attending meetings, understanding Y’s difficulties and explaining decisions to the family. While this support was helpful for the family, it did not result in Y being able to access education.
19. The Council has a duty to provide a full-time suitable education to children unable to attend school for medical reasons or because of exclusion. 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. In fact the Council’s response to my enquiries indicates it would not act unless prompted to by the school submitting an application for Section 19 alternative provision.
20. The failure of the Council to consider Y’s situation and whether it owed him a Section 19 duty is fault. On the basis of the information seen, I cannot say what the outcome would have been if the Council had properly considered its Section 19 duty. I will therefore recommend a symbolic payment to recognise the uncertainty caused as a result of this failure.
21. Councils are required to complete the EHC Plan process within 20 weeks of the request for the needs assessment. It failed to meet this timescale in this case and accepts there was a delay of 17 weeks to issue the final EHC Plan. This is fault. Mrs X is not satisfied the EHC Plan meets Y’s needs, including the decision to name mainstream schooling. She has appealed but could not do this until the final EHC Plan was issued. The 17-week delay frustrated Mrs X’s appeal rights.

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Action

22. 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.
23. The Council should provide us with evidence it has complied with the above actions.
24. 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

25. 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