Summary: Ms X complains about issues concerning her daughter Y’s education, including delays in the EHCP process, failure to provide suitable full-time education, and poor communication. We have concluded our investigation with a finding of fault. The Council delayed in finalising Y’s EHCP and failed to ensure suitable education was in place between November 2022 and May 2023. The Council has agreed to our recommendations.

The complaint

1. Ms X complains the Council has failed to adhere to statutory process and timeframes throughout the EHCP process for Y, her daughter. Ms X also complains the Council has failed to provide suitable fulltime education to Y since November 2022, Ms X also raises concerns about a failure to cover costs, provide imbursement for expenses and an absence of communication throughout events in this complaint. Ms X seeks a thorough review and resolution of these issues to ensure appropriate support for his daughter Y, and a suitable remedy awarded to acknowledge injustice in this complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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(i), as amended)
4. 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

5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council were offered an opportunity to comment on my draft decision and I considered any comments submitted before making a final decision.

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What I found

Guidance and legislation

Special educational needs

7. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
8. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act (S42)).The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Timescales for EHC needs assessments and plans

9. Once a council receives a request for an EHC needs assessment, it must decide whether to carry one out within six weeks. If it agrees to assess, it must seek information and advice from various professionals and issue a final EHC Plan within a total of 20 weeks of the initial request. (The Special Educational Needs and Disability Regulations 2014, Regulation 13; SEND Code of Practice 2015, paragraphs 9.40 to 9.42).
10. Delays in issuing a plan can be fault. The Code makes clear that councils should meet the statutory time limits “unless exceptional circumstances apply”. The 20-week limit is not paused by difficulties obtaining professional advice unless those difficulties are beyond the council’s control.

Personal budgets and direct payments

11. Where a council maintains an EHC Plan, parents can request a personal budget to arrange some or all of the provision. This may include direct payments. Councils should work with families to agree and clarify what will be funded and how provision will be arranged. (SEND Code of Practice, paragraphs 9.95–9.122).

Section 19 duty

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as S19 or alternative education provision (AP).
13. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
16. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Focus report

17. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
18. Where councils arrange for schools or other bodies to carry out the functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

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What happened

19. In May 2022, Ms X made a parental request for an Education, Health and Care Needs Assessment (EHCNA) for her daughter, Y.
20. The Council initially refused this request, citing evidence from School A that Y was making age-appropriate progress. Ms X appealed this decision to the SEND Tribunal.
21. In October 2022, the Tribunal directed the Council to carry out an EHCNA. The Council confirmed it would do so in November 2022.
22. The assessment was delayed due to late receipt of Educational Psychology (EP) advice, which the Council attributes to a national shortage and backlog of referrals.
23. A draft Education, Health and Care Plan (EHCP) was issued in June 2023. The final EHCP was issued in September 2023, naming School A.
24. In the meantime, the Council offered Blended Learning through its Alternative Provision College (APC). Ms X declined this, preferring to arrange education herself via private tuition and therapeutic activities.
25. The Council offered various provision through Provider A and funded this up to a maximum of 18 hours a week. This arrangement ended in mid-2024 following safeguarding concerns about the provider.
26. Following this, the Council agreed to Education Otherwise Than at School (EOTAS) and a Personal Budget. It funded a detailed package of tuition and support, including enrichment and therapy.
27. Ms X raised ongoing concerns about the adequacy of provision and delays in reimbursement. The Council provided evidence that it reimbursed over £4,800 for education-related costs and confirmed the structure of the current provision.
28. The Council acknowledged some delays in communication and confirmed that Ms X declined some of the provision offered, including APC Online and Blended Learning.
29. The Council said it met its section 19 duty because it offered suitable education, even when Ms X declined it.

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Analysis

Delays in EHCP process

30. The statutory timescale to issue an Education, Health and Care Plan (EHCP) is 20 weeks from the date a council agrees to assess. Following an appeal, the Tribunal ordered the Council to assess in October 2022 (received by the Council in November 2022). The final EHCP was not issued until the end of September 2023, around 40 weeks later. This is approximately 20 weeks beyond the legal timescale, which amounts to fault.
31. The Council attributes the delay primarily to difficulties obtaining Educational Psychology (EP) advice, citing a national shortage of EPs. It has acknowledged this delay and outlined steps it is taking to improve capacity, including increased recruitment and commissioning external EPs. We note the Council is operating under an action plan to improve statutory compliance and reduce delays, and our guidance says we would not normally recommend a service improvement in those circumstances.
32. However, the national shortage does not remove the Council’s legal duty to comply with statutory timescales. In line with our guidance, where the delay in issuing an EHCP exceeds 26 weeks, we would normally recommend a financial remedy to acknowledge the impact of uncertainty and frustration caused. In this case, the 20-week delay caused avoidable distress and uncertainty for Ms X and Y and was fault.

Section 19 duty

33. Councils have a legal duty under section 19 of the Education Act 1996 to provide suitable education for children of compulsory school age who, for any reason, may not otherwise receive it. This duty arises when it becomes clear that a child is not accessing suitable full-time education, and applies irrespective of whether the child has an EHC Plan or is registered at a school.
34. In this case, Y became unable to attend her primary school in November 2022 due to significant anxiety and distress. The Council was aware at this point that she was not receiving full-time, suitable education and that her attendance at school was no longer viable. The Council did not offer any formal alternative provision until May 2023, when it referred Y to Provider A for blended learning. Even then, the Council's engagement with its section 19 duties appears inconsistent and delayed.
35. The Council says it considered its section 19 duty met by the offer of Provider A, and that the duty did not apply sooner because Y was on roll at a school and the family preferred to arrange their own support. It has also referenced parental preference for therapeutic activities during this time. However, the Council remained under a legal duty to ensure Y had access to suitable education. Where a parent is unwilling or unable to accept a proposed provision, this does not negate the Council’s obligation, it must consider what is reasonably practicable and, if its offer is rejected, take steps to understand why and either revise or escalate provision accordingly.
36. The Council has not provided evidence that it considered its section 19 duty engaged at the point Y became unable to attend school. From November 2022 to May 2023, there is no evidence the Council assessed Y’s needs or escalated its offer when its initial referral was declined. This was a prolonged period during which Y remained without access to suitable education.
37. We also note the Council’s own chronology confirms that although APC provision was offered in May 2023, Y did not engage with it. The family instead continued with private tuition. The Council commissioned Provider B to deliver 15 hours of tuition per week from November 2023, later increasing this to 18 hours from April 2024, following the formal agreement of Education Otherwise Than At School (EOTAS). While this provision is now substantial, it does not remedy the earlier gaps in education or the delay in engaging with Y’s changing needs.
38. The Council did not act with sufficient urgency or clarity after Y’s withdrawal from school. There is no evidence it took proactive steps to recognise or address the gap in Y’s education between November 2022 and May 2023. This delay amounts to fault. As a result, Y went without suitable full-time education for six months, which caused her a loss of educational opportunity and caused her mother, Ms X, avoidable distress, uncertainty and time and trouble

Delivery of provision in the EHCP

39. Once the Council issued Y’s final EHCP on 28 September 2023, it had a duty to arrange the special educational provision set out in Section F of the Plan. This is a non-delegable duty under section 42 of the Children and Families Act 2014.
40. The Council arranged a package of alternative provision for Y overseen by School A, including commissioned tuition through Provider A (Bright Sparks). This began with a funded offer of up to 15 hours per week from November 2023, later increased to 18 hours per week from April 2024. Alongside this, a personal budget was put in place to support additional tuition and enrichment activities.
41. In April 2024, the Council formally agreed to Education Otherwise Than At School (EOTAS) and amended the personal budget to include full-time provision. This included tuition, music and enrichment activities, and resources, reflecting the provision set out in Section F of the EHCP.
42. However, we note that provision was disrupted in June 2024 when the Council ceased trading with Provider A due to safeguarding concerns. The Council offered an alternative provider and took steps to adapt the personal budget in response, allowing Ms X to commission replacement tuition directly. While there was a short period of disruption, the Council acted appropriately to resolve the issue once it arose.
43. The evidence shows the Council arranged the provision in the EHCP. It made suitable arrangements and adapted these where necessary. There is no evidence of significant delay or failure by the Council in implementing the agreed provision after the EHCP was finalised.

Reimbursement of educational and therapeutic costs

44. Ms X complains the Council failed to reimburse her for educational and therapeutic expenses she incurred in meeting Y’s needs, particularly where she arranged provision privately in the absence of suitable Council arrangements.
45. The evidence shows the Council made reimbursements of £4,649.64 in May 2024 and a further £230.21 in August 2024 for education-related expenses. It also provided a significant personal budget for Y’s current provision.
46. While Ms X may have incurred additional costs, the Council is not automatically obliged to reimburse all private expenditure, especially where it did not commission or agree to the provision in advance. Reimbursement is generally appropriate only where the Council has failed in its duty to secure provision, and the parent reasonably incurred costs as a result. In this case, we have found fault with how the Council responded to Y’s non-attendance and delays in arranging suitable alternative education (see Section 19 duty). However, we are satisfied the Council subsequently provided or offered alternative provision and reimbursed key costs once this was clarified.
47. We do not find fault with the Council’s approach to reimbursement overall. It has provided financial support through both retrospective payments and a personal budget, and there is no clear evidence it refused reimbursement it was legally obliged to provide.

Communication and complaint handling

48. Ms X says the Council failed to respond to her and did not communicated effectively throughout. She also describes having to chase responses and feeling that the Council was not engaging in a timely or clear way.
49. The Council has acknowledged delay in responding to correspondence. It has not, however, provided a breakdown of when responses were sent or how significant the delays were. It also says it remained in contact with Ms X throughout, including attempts to phone her, written communications about provision and placement, and ongoing dialogue about revisions to the EHC Plan and the personal budget.
50. The Council’s admission of some delay and the nature of the concerns raised by Ms X lead us to conclude that communication was not consistently effective. Given the complexity and stress of the situation for Ms X, the Council should have kept her updated more consistently. Its failure to do so was fault.
51. That said, we do not consider the identified delay caused a significant additional injustice, beyond that already addressed by our findings on the EHCP delays and Section 19 failures. These findings already recognise the emotional and practical impact on the family, and our recommended remedy will take this into account.

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Agreed action

52. We have found fault by the Council which caused injustice to Ms X and Y. This includes:
• Delay in issuing Y’s EHCP following the Tribunal decision;
• A failure to act with sufficient urgency to identify and provide suitable alternative education following Y’s withdrawal from school, amounting to a breach of the Council’s duties under section 19 of the Education Act 1996;
• Delays in communication and failure to respond promptly to Ms X’s correspondence.
53. In line with our guidance, we only recommend a remedy payment for £100 per month, up to six months where delays in finalising an EHCP were due to a lack of Educational Psychologist advice.
54. We found fault with the Council’s failure to provide Y with suitable education under section 19 of the Education Act 1996 between November 2022, when it confirmed it would complete an EHC needs assessment, and May 2023, when it first offered Blended Learning provision. To acknowledge the impact on Y of missing education for six-months, the Council should make a symbolic payment of £1,200, calculated at £200 per month, in line with our Guidance on Remedies. Y was without suitable education for several months, and Ms X experienced avoidable stress, time and trouble in trying to secure the provision her daughter required.
55. We have not recommended a service improvement in this case for delay in finalising Y's EHCP as the Council has already developed an action plan addressing statutory delays and EP shortages in response to wider systemic issues.
56. To remedy the injustice caused, the Council has agreed to:
1. Write an apology to Ms X and Y for the faults identified;
2. Pay Ms X an amount of £500 to acknowledge delay in finalising Y’s EHCP.
3. Pay Ms X £1,200 to acknowledge the period between November 2022 and May 2023, during which Y was out of school and the Council failed to arrange suitable education in line with its section 19 duty.
4. Remind relevant staff of the need to act promptly in identifying and arranging interim education when a child cannot attend school;
5. Review its record-keeping and communication practice in EOTAS and alternative provision cases to ensure families are kept appropriately updated.
57. The Council will complete action points a to c within one month of the Ombudsman’s Final Decision and action point d within two months of the Ombudsman’s Final Decision. The Council will provide the Ombudsman with evidence of compliance with the remedies.

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Decision

58. We have concluded our investigation with a finding of fault. The Council delayed in finalising Y’s EHCP and failed to ensure suitable education was in place between November 2022 and May 2023. The Council has agreed to our recommendations.

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Investigator's decision on behalf of the Ombudsman