Summary: Mrs B complained there were delays by the Council during the Education, Health and Care (EHC) Plan process for her son, who I will refer to as C, and it failed to secure education for him while he was out of school. There was fault by the Council. The Council did not meet statutory timescales during the EHC Plan process, and it did not consider its section 19 duty when Mrs B told it C was not receiving an education. The Council’s communication with Mrs B was also poor. Because of the fault, Mrs B suffered uncertainty, distress and frustration, her appeal right was delayed, and she continued to chase the Council for updates. The Council has agreed to apologise to Mrs B and C, make symbolic payments, and issue staff briefings.

The complaint

1. Mrs B complains about the Council’s delays during the Education, Health and Care (EHC) Plan process for her son, who I will refer to as C. She says C has been out of school for almost two years and the Council has not checked on his welfare. She also says the Council’s communication with her has been poor.
2. Mrs B says the Council’s actions have impacted her and C’s mental health and routine, and C has missed out on education. She says she has also been financially impacted as C has not been having free school meals he is entitled to while he has been out of school.
3. Mrs B would like better communication from the Council, and for it to take responsibility for its failings. She would also like the Council to repay her for the loss of the free school meals.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have investigated

10. I have investigated matters in this case from May 2023, when Mrs B says C stopped attending school, to December 2024, when the Council issued C with the final EHC Plan.

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How I considered this complaint

11. I considered evidence provided by Mrs B and the Council, as well as relevant law, policy and guidance.
12. Mrs B 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

13. 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. 
14. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Timescales and process for EHC needs assessment

15. 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).

General section 19 duty

16. 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 section 19 or alternative education provision.
17. 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)
18. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 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)

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What happened

19. This is a summary of events outlining key facts and it does not include everything that has happened in this case.
20. In May 2023, C stopped attending school following a permanent exclusion.
21. Shortly after, Mrs B and the Council met, and she told it mainstream school is not the right place for C due to his autism and anxiety, and her preferred setting was a specialist school which I will refer to as setting X. She discussed a provision with the Council which I will refer to as provision A, which she said she would try to get C to attend. This is a setting which provides education to children who have been excluded from school. As C was unwell at the time, the Council made a referral for home tuition which began around this time.
22. In late July 2023, Mrs B requested an EHC needs assessment for C.
23. In late August 2023, the Council sent its decision to Mrs B and told her it agreed to carry out an assessment. An assessment by an Educational Psychologist (EP) is part of the assessment process.
24. In late September 2023, provision A contacted Mrs B to arrange admission for C. The Council says Mrs B declined the offer as she was waiting for a place at setting X for C.
25. In October 2023, the Council says it contacted Mrs B to confirm that home tuition would be ending as there was an available space at provision A for C and there was no reason he could not attend. The Council says it did not get a response from Mrs B.
26. In early November 2023, the Council contacted Mrs B and informed her it had ended home tuition and provision A would be in touch with her to arrange C’s admission. Admission was arranged around this time and C started to attend setting Y.
27. In mid-February 2024, the Council received the EP report.
28. In late February 2024, Mrs B told the Council she had decided to remove C from setting Y and return to home learning, as it could not meet his needs, and his anxiety had increased since attending. She asked the Council if it could put home tuition back in place for C while she waited for a place to become available for him at setting X. She told the Council if it could not do this, she would continue to home educate C.
29. A few days later, the Council sent Mrs B an elective home education information pack.
30. In early March 2024, Mrs B told the Council she was not prepared to home educate C as she works full-time. She told it she would also not send C back to setting Y, as it could not meet his needs. The Council responded to Mrs B and told her if she was not choosing to home educate C, the current education provision available to him was through setting Y. It told her setting Y was also setting up a type of provision that would be suitable for C. Mrs B asked the Council for more information about this, but she did not get a response.
31. In late March 2024, the Council issued C’s draft EHC Plan.
32. In mid-May 2024, Mrs B complained to the Council. She told it:
• she had been waiting for C’s EHC Plan since the previous year;
• she sent her amendments to C’s draft EHC Plan to the Council in early April and she had not been given an update by the Council after chasing it for one; and
• C was still out of education and the Council had not checked on his welfare.
33. In late May 2024, the Council issued an amended draft EHC Plan for C.
34. A few days later, the Council sent the draft EHC Plan to setting X for consultation. Setting X sent its consultation response to the Council in early June 2024.
35. In late June 2024, the Council told Mrs B setting X had offered C an interview. A few days later, Mrs B told the Council setting X had since withdrawn the interview offer due to it being full. She told the Council she was unhappy it had had setting X’s consultation response since early June 2024 but its delay in actioning it had led to the interview offer being withdrawn. The Council contacted setting X and acknowledged there had been delays in the Council actioning the offer, but asked if it could reconsider its position.
36. In early July 2024, the Council says Mrs B told it she would only accept setting X as an option for C. Mrs B said she felt she was forced to home educate C, which she made known to the Council at the time would not be a good option as she works 30 hours each week. The Council told Mrs B even if C had had an interview at setting X, it would not be certain that setting X would be named in the EHC Plan.
37. The Council sent Mrs B its stage one complaint response around this time. It told her:
• The Council’s elective home education team’s legal duty is to make annual contact with parents, and it had attempted contact with Mrs B, but it had not been successful. It accepted it should have made a follow-up call, but told Mrs B she could contact the team if she was concerned about C’s welfare.
• The Council agreed it had not met and was beyond the 20-week statutory timescale for issuing C’s final EHC Plan. It said it was taking action to help to reduce delays.
38. Mrs B responded to the Council and said she told it in March 2024 she would not be home educating C due to her work, and the Council said it would get in touch with her about education for C, but she had not had a response about this to date.
39. In late July 2024, Mrs B asked the Council to name setting X in C’s EHC Plan. She told the Council she did not want a mainstream school to be named as mainstream settings could not meet C’s needs.
40. In mid-September 2024, the Council told Mrs B it was not in agreement to name specialist as the type of setting in C’s EHC Plan as it could not confirm a specialist placement would be available or suitable. Mrs B told the Council C had been offered an interview in November 2024 for a different setting, which was too long to wait, and she could not have C at home for another term. She asked the Council to urgently place C in education.
41. Shortly after, the Council issued further consultations to different settings, and it told Mrs B there were two options for C in the meantime. It told her:
• C could attend setting Y and have a provision which was similar to provision A as an interim measure while the Council waited for the further consultation responses; or
• the Council could seek to secure another mainstream place for C, but anticipated Mrs B would not be open to this due to her concerns about mainstream settings for C.
42. In late September 2024, Mrs B told the Council she did not think the setting that offered C an interview in November 2024 could meet his needs. She asked if C could be added to a waiting list for setting X as she felt she had already waited long enough. She also told the Council C had not been having free school meals since being at home, which the Council said it would look into.
43. In early October 2024, the Council sent its stage two complaint response to Mrs B. It told her:
• The EHC Plan had not been finalised due to a disagreement about which setting should be named in the Plan, and the Plan could not be issued until there was an agreement on which setting should be named in section I. It reiterated setting X could not offer a place for C as it was at capacity.
• The Council should not have advised in the stage one complaint response the elective home education team should have contacted Mrs B further. It apologised for this and told her as she had confirmed to the Council in March 2024 she would not be home educating C, the team had ended its involvement with her at this point and so would not be contacting her further.
• There was a gap in communication between July and September 2024 due to schools being closed for summer, and as such, it had no new information it could pass on to Mrs B. It told her it appreciates the Council should have told her this.
44. In late December 2024, the Council issued C’s final EHC Plan which named mainstream as the type of setting in section I. Mrs B has not appealed the final Plan.
45. In early 2025, the Council offered Mrs B a payment of £2,100 for C’s loss of education between March and December 2024, and a payment of £400 to make up for the missed free school meals. The Council says Mrs B accepted the payments.

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Analysis

46. The Council has acknowledged, and it is clear from the documentation, there have been significant delays in this case. Mrs B’s request for an EHC needs assessment was made in late July 2023. The Council told her it agreed to assess C in late August 2023, within the statutory six-week timescale. The Council then had a remaining 14 weeks to issue and finalise the EHC Plan. But the Council issued the final Plan in late December 2024, ten months after it had received the educational psychologist (EP) report in February 2024. This is a total delay of roughly 12 months. This was fault.
47. In response to my enquiries, the Council told me the initial delay was due to the national EP shortage and waiting for outstanding EP advice, and staff absence. The Council has suggested the delay from July 2024 to December 2024 was due to Mrs B not wanting it to name a mainstream setting in the Plan, and her not wanting to accept a setting other than setting X. I recognise the Council was trying to secure Mrs B’s agreement, but it was incorrect to say it was unable to issue the final EHC Plan without Mrs B’s agreement. It should not have allowed matters to drift. Section I of the Plan could be appealed by Mrs B, so the Council did not have to wait for her to agree on a setting to be named in the Plan for it to issue it. I note however, that Mrs B has not appealed the final EHC Plan issued in December 2024 naming a mainstream placement. On balance, even if the final EHC Plan had been issued sooner, Mrs B may not have used the appeal rights which would have become available to her. This reduces the level of injustice the delay caused.
48. The 12 month wait delayed Mrs B’s right of appeal to the Tribunal until it issued the final EHC Plan in December 2024. We take the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timescales here is fault and has caused Mrs B distress and frustration. We recognise the national shortage of EPs available to complete reports for EHC needs assessments, leading to delays in the rest of the EHC Plan process. Our current approach is to remedy the injustice caused by this by recommending a symbolic payment of £100 per month from the date the EHC Plan should have been issued, to when the CL received the EP report. I have made a recommendation to reflect this.
49. The Council also delayed actioning the interview offer from setting X, which led to the setting withdrawing the offer due to all spaces being taken. As the Council told Mrs B, even if the interview had gone ahead, this would not mean C would have been guaranteed a space at the setting, as there are further steps following an interview to secure a place. So, we cannot say whether the Council’s delay in actioning the offer caused C to miss out on a place at setting X. But it did cause him to miss out on the opportunity to interview for a place. This caused uncertainty to Mrs B of not knowing if an interview might have resulted in a place for C at setting X, her preferred setting, and subsequently led to the Council issuing the final EHC Plan sooner.
50. The law requires councils to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council first considered its section 19 duty when it met with Mrs B and C in mid-June 2023 shortly after C was excluded. It arranged provision A for C at setting Y, and referred him for home tuition in the meantime while he was unwell. C attended setting Y from November 2023 to February 2024, when he stopped attending due to anxiety. Mrs B was set up to home educate C from this point, till March 2024 when she told the Council she would not home educate C, or send him back to setting Y. The Council should have considered its section 19 duty at this point, but it did not do this, and it did not respond to Mrs B. It seems the Council’s view was setting Y was suitable and available for C to attend, but there is no evidence to show how the Council decided this. The Council’s failure to consider if a section 19 duty applied and ensure C received an education provision was fault.
51. The fault caused an injustice to Mrs B. C may have missed education from March 2024. The Council issued the final EHC Plan in December 2024. The final Plan gave Mrs B the right to appeal to the SEND Tribunal. As explained in paragraph 5, once an appeal right takes effect, we cannot consider matters which can be dealt with by an appeal to the Tribunal. We can therefore only consider a remedy for the uncertainty about the nine months C may have missed education, from March 2024 when the Council should have considered its section 19 duty, to December 2024 when it issued the final Plan.
52. Mrs B complains the Council did not check on C’s welfare while he was out of school. The Council says it contacts parents on an annual basis to check in on education when a child is home-educated. It says it attempted contact with Mrs B in March 2024 after she said she would home educate, which Mrs B disputes, but was not successful, and it did not try again as Mrs B told the Council shortly after she would not be home-educating C. But the Council had not properly considered its section 19 duty at this point. It knew Mrs B had told it she was not home-educating C. So, I consider the Council allowed matters to drift. This was fault.
53. It is clear from the documentation the Council’s communication has been poor. I have seen evidence where the Council has not responded to Mrs B’s communications, and evidence of Mrs B continuously chasing the Council for updates. Mrs B was already under significant pressure due to other failings by the Council, and its poor communication caused additional frustration.
54. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
55. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
56. When a young person has missed education because of fault by a council, we may recommend the council make a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
57. In determining an appropriate level we will take account of factors such as:
• The severity of the young person’s SEND as set out in the EHC Plan;
• Any educational provision that was made during the period;
• Whether additional provision can now remedy some or all of that loss; and
• Whether the period affected was a significant one in a young person’s school career, for example the first year of compulsory education, the transfer to secondary school or the period preparing for public exams.
58. The Council did not ensure a suitable education was provided for C from March 2024, and it did not evidence how it considered setting Y remained suitable and available for C after Mrs B told the Council at this point it was not. However, as mentioned in paragraph 51, due to Mrs B’s appeal rights being in place in December 2024, we can only consider this up to December 2024. The Council offered a symbolic payment of £2,100 to Mrs B. I am satisfied that in the circumstances of this complaint, £2,100 is an appropriate amount to remedy the uncertainty of whether the section 19 duty applied after the Council failed to consider if provision A remained available and suitable to C. I have therefore not recommended a further payment to remedy the education provision C may have missed. The Council also offered Mrs B an additional payment of £400 to acknowledge the missed free school meals, which I consider to be a suitable amount.
59. I have made two service improvement recommendations below. On another case, the Council has already agreed to remind relevant staff of the importance of keeping parents updated during the EHC Plan process, particularly where timescales are not met. In response to my enquiries on Mrs B’s complaint, the Council also told us it has taken steps to increase capacity across its EHC Plan and EP service to meet demand; reviewed its processes; and ensured training is delivered to staff. I therefore have not made any further service improvement recommendations.

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Action

60. To remedy the outstanding injustice caused to Mrs B and C by the fault I have identified, the Council has agreed to take the following actions within four weeks of my final decision:
• Apologise to Mrs B for the delayed appeal right; delays in the EHC needs assessment process and issuing of the final Plan; and the frustration caused by the poor communication. This apology should be in accordance with our guidance Making an effective apology.
• Apologise to Mrs B for the uncertainty caused about whether the Council’s section 19 duty applied after it failed to consider if provision A remained available and suitable for C between March 2024 and December 2024. This apology should be in accordance with our guidance, as above.
• Pay Mrs B £250 for the delays in the EHC needs assessment process and issuing of the final Plan. This has been calculated at £100 per month of delay up until the point the Council received the EP report, as outlined in paragraph 48.
• Pay Mrs B £200 for the frustration caused by the poor communication.
61. The Council has agreed to take the following actions within three months of my final decision:
• Issue a staff briefing so all relevant staff are aware of the Council’s statutory obligation to ensure a child receives a suitable education if they cannot attend school. If they are satisfied a setting is suitable, evidence how they consider it remains available and accessible.
• Share our focus report "Out of school, out of sight?" with relevant staff to emphasise the Council’s section 19 responsibilities and identify wider points of learning.
62. The Council should provide us with evidence it has complied with the above actions.

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Decision

63. I uphold Mrs B’s complaint and find fault causing injustice to Mrs B and C. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman