Summary: Mrs Y complained that the Council failed to provide her child with a suitable education and delayed completing their Education Health and Care needs assessment. Mrs Y also complained about delays by the Council in responding to her complaint. We have not found fault by the Council regarding the provision of a suitable education or the completion of the Education Health and Care needs assessment. We have found fault, causing injustice, with its handling of Mrs Y’s complaint. The Council has agreed to remedy this injustice by apologising to Mrs Y, making a payment to reflect the upset caused and a service improvement.

The complaint

1. Mrs Y complains the Council:
1. has failed to provide her child, Z, with a suitable education since September 2023, following their move to its area;
2. delayed completing the Education Health and Care (EHC) needs assessment process for Z; and
3. failed to respond to her complaints in a timely way.
2. Mrs Y wants the Council to apologise for its failures and take action to improve its service

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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.
4. 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. 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)
6. 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)
7. 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

Events after 8 December 2023

8. 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
9. I have not investigated what happened after 8 December 2023. This is because:
1. 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);
2. 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 Educational Health and Care (EHC) Plan, we cannot investigate a lack of special educational provision, or alternative educational provision; and
3. the period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
10. Once the Council issued Z’s final EHC Plan on 8 December 2023, Mrs Y had the right to appeal to the SEND Tribunal against the Council’s decisions in the plan about the type of special educational needs provision it would make for Z, and their placement.
11. Mrs Y appealed to the Tribunal against the Council’s decisions about Z’s placement and type of special educational needs provision. The Tribunal proceedings have now been concluded.
12. I consider the reason Z was not attending school from 8 December 2023 was linked to Mrs Y’s disagreements about these decisions.
13. This means, in my view, we cannot investigate a complaint about a failure to provide Z with a suitable education from 8 December 2023, the date the Council’s appealable decision was made.

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How I considered this complaint

14. I considered evidence provided by Mrs Y and the Council as well as relevant law, policy and guidance.
15. Mrs Y and the Council had the opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should have happened

Alternative provision: the law

16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)). We refer to this as section 19 or alternative education provision.
17. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
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)

Our guidance: “Out of school, out of sight”

19. We issued guidance in our Focus Report “Out of school, out of sight? Ensuring children out of school get a good education” on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. We recommended councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Timescales and process for EHC needs assessment 

20. 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; and
• 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).  

Procedure where a child moves between areas during an assessment

21. The Code says:

• Some children and young people will move between local authority areas while they are being assessed for a plan. The new authority in such cases should decide whether it needs to carry out an EHC needs assessment itself, and it must decide whether to undertake an EHC needs assessment if it receives a request from the child’s parent or the young person.
• The new authority should take account of the fact that the old authority decided to carry out an EHC needs assessment when making its decision. If it decides to do so, then it should use the information already gathered as part of its own EHC needs assessment.
• Depending on how far the assessment had progressed, this information should help the new authority complete the assessment more quickly than it would otherwise have done. (9.162)

22. Under the Council’s process where a child moves into its area during an assessment by the old authority:

• The information about the assessment (including the information provided by the old authority) is presented to its SEND Decision Making Group Panel;
• The Panel decides whether the Council should continue with the assessment and, if so, whether to use existing advice from professionals, seek further advice or start a new assessment; and
• The Council then notifies the parents about the Panel’s decision.

The Council’s published complaints procedure

23. This says:

• the Council will issue its stage 1 response within 20 working days from the date on which it decides the complaint should be formally investigated under its complaints procedure;
• it will consider any request for a stage 2 review and decide whether this is appropriate. If it does not think so, it will notify the complainant; and
• if it agrees to carry out a stage 2 review, it will complete this within 25 days of the decision to carry out the review.

24. The procedure also says:

• If a complainant is still unhappy after their complaint has been through all stages of the Council’s complaints procedure, they can ask the Local Government and Social Care Ombudsman to review the complaint; and
• The Ombudsman expects complainants to have given the Council the chance to deal with the complaint first. It may decide to look at the complaint anyway if the Council has not responded within a reasonable time, usually up to 12 weeks.

What happened

25. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

26. Mrs Y, Z and their family lived in Council P’s area. Z had a place at School A, which was within the Council’s area. In July 2023, the family moved from Council P’s area to the Council’s. Z had stopped attending school in May/June 2023 but remained on School A’s roll following the move.
27. Shortly before the move, Council P agreed to and started an EHC needs assessment for Z, but not yet completed this. Council P notified the Council about Z’s move to its area, and the EHC needs assessment. It attached its case file for the assessment.
28. Mrs Y contacted the Council on 24 July 2023 about the position regarding Z’s EHC needs assessment.

July to September 2023: Decision about Z’s EHC needs assessment

29. The Council told Mrs Y on 24 July, Z’s case would be discussed at its next Decision Making Panel Meeting on 31 July. The Panel would then decide whether the Council should carry out an EHC needs assessment for Z
30. The Panel did not agree to an EHC needs assessment for Z. It concluded:

• where a young person was identified as having special educational needs, the school should follow the graduated approach. The way in which a pupil responded to an intervention could be the most reliable method of developing a more accurate picture of needs;
• to assess Z correctly, they needed to be in school so that a robust assessment could take place; and
• the school and the Educational Welfare Officer (EWO) or Inclusion Officer should have a robust transition plan in place for the new academic year to get Z back into their educational placement with no further delays.

31. The Council told Mrs Y about the Panel’s decision on 1 August. It confirmed this in writing to Mrs Y on 2 August, together with the Panel’s reasons and notice of the right to appeal to the SEND Tribunal.
32. The Council told Mrs Y on 4 September it had now agreed to carry out an assessment for Z and would aim to notify her of the outcome by 12 November 2023.

September to October 2023: Mrs Y’s request for alternative provision for Z

33. Mrs Y contacted the Council on 5 September with her concerns about support to meet Z’s needs and alternative provision. She said she would not be sending Z to school when there was no agreed plan or support to meet Z’s sensory needs.
34. The Council told Mrs Y it would refer her contact to an EWO who would consider whether the Council should make alternative provision for Z under its section 19 duty.
35. An EWO was allocated on 13 September. They contacted Mrs Y about Z’s circumstances on 14 September and made further enquiries.
36. The EWO’s view was the Council should put alternative provision in place for Z. They told Mrs Y on 20 September they felt part-time tuition would be appropriate at this stage to allow Z to re-engage with education before reviewing the position and any increase in provision.
37. The request for alternative provision was considered by the Council’s Alternative Provision Panel on 21 September. It agreed to provide Z with six hours of tuition a week (over three sessions) until 22 December 2023 as part of a phased plan for Z’s return to school, to support their re-engagement with education and reintegration back to school.
38. On 23 October the Council told Mrs Y it had found a provider and Z’s tuition would start shortly.

November to December 2023: Issue of Z’s EHC Plan

39. After completing the EHC needs assessment the Council decided Z should have an EHC Plan.
40. It issued a draft plan on 21 November and the final plan on 8 December. This set out Z’s SEN provision and named School A as their placement. The Council sent the final plan to Mrs Y with a letter notifying her of the right to appeal to the SEND Tribunal against its decisions in the Plan.

Events from 8 December 2023

41. Mrs Y asked the EWO in November whether the tuition sessions could be increased. The Council considered the request and agreed in December to increase Z’s alternative provision to 10 hours a week from January to March 2024 to support their return to School A.
42. Z did not return to school. The Council stopped making alternative provision for Z in March 2024.
43. Mrs Y appealed to the SEND Tribunal against the Council’s decisions in the EHC Plan about Z’s needs, special educational needs provision and placement. The Tribunal proceedings have now concluded. A new EHC Plan was issued for Z naming a package of Education Otherwise Than At School as their educational provision going forward.

Mrs Y’s complaint to the Council

44. Mrs Y contacted the Council in September 2023 about her concerns regarding its provision of a suitable education for Z. She complained Z had been unable to attend school since May 2023. She said she had contacted the Council before the move and followed this up many times since then but had not heard back about suitable arrangements for Z’s education.
45. The Council responded to Mrs Y’s complaint in January 2024. In its stage 1 response it said:

• it was not responsible for Z’s education before the family moved to its area on 17 July 2023;
• it recognised she was dissatisfied with its initial communication and that its processes were not clear to her. It apologised for her frustration; and
• it had responded to her enquiry on 5 September 2023 about alternative provision for Z within reasonable timescales.

46. Mrs Y told the Council on 29 January she was not satisfied with its response. She asked for a stage 2 review. She did not receive an acknowledgment and:

• she chased the Council for its stage 2 response on 9 April:
• the Council contacted her on 10 April. It said her emails had been sent to an incorrect email address, but it would review her request for a stage 2 response now;
• Mrs Y sent some further information about her complaint on 17 April; and
• the Council confirmed on 1 May it would issue its response by 7 June (within 25 working days of 1 May).

47. The Council did not complete the review and Mrs Y complained to it on 27 June about its failure to issue the stage 2 response. She did not receive a reply and brought her complaint to us in September 2024.
48. The Council issued its final response in January 2025. It replied to a number of other matters which are not part of this complaint. It said, regarding the issues in this complaint:

• it did not uphold the complaint it had failed to provide Z with a suitable education. Following the involvement of its EWO, it had considered the medical evidence submitted and agreed to put alternative provision in place for Z while their EHC Plan was finalised. This was later increased at Mrs Y’s request;
• the alternative provision remained in place until the EHC Plan was issued, naming Z’s school placement; and
• it agreed to partially uphold the complaint about the initial communication issues.

My view – was there fault by the Council causing injustice?

a) Provision of a suitable education for Z

49. I don’t consider there was fault by the Council in the way it responded to Mrs Y’s request it make alternative provision for Z. This is because the Council:

• was not responsible for providing Z with a suitable education before Mrs Y and the family moved to its area at the end of the school year in July 2023;
• responded promptly to Mrs Y request in September 2023 that it make alternative provision for Z because they were unable to attend school;
• made enquiries about Z’s circumstances and properly considered its section 19 duty to provide alternative education for Z;
• in accordance with its process, it referred Z’s case to its Panel for a decision about the Council’s duty to make alternative provision for Z;
• informed Mrs Y about the decision and promptly arranged to put the agreed alternative provision in place for Z; and
• properly considered Mrs Y’s request for increased provision and put the agreed increase in provision in place.

b) EHC needs assessment process

50. I don’t consider there was fault by the Council in its conduct and completion of Z’s EHC needs assessment. This is because the Council:

• responded promptly to Mrs Y’s enquiry about the EHC assessment process started by Council P before their move;
• properly considered whether it should continue with an EHC assessment in accordance with its procedures; and
• promptly notified Mrs Y about its decisions and review rights.

51. And, following its decision to carry out its own assessment on 4 September 2023, it completed the process within the statutory timescale by issuing Z’s final EHC Plan on 8 December 2024. This was 14 weeks from its decision to carry out the assessment.

c) Complaint handling

52. I consider there were failures and delays by the Council in its handling of Mrs Y’s complaint. I note it:

• took over 4 months to respond to the complaint Mrs Y made in September 2023;
• took over 2 months to acknowledge Mrs Y’s request, in January 2024, for a stage 2 review of her complaint; and
• failed to carry out the stage 2 review within 25 working days of its decision to do so on 1 May. The review should have been completed by 7 June, but the stage 2 response was not issued until January 2025, some 7 months late

53. The Council’s failure to properly follow its complaints process and its delays were fault.
54. This caused Mrs Y frustration and uncertainty about the outcome of her complaint.

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Actions

55. To remedy the injustice caused by the above fault and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y for its failure to properly follow its complaint process when dealing with her complaint. This apology should be in line with our guidance on Making an effective apology; and
2. pay Mrs Y £150 to reflect the frustration and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies
56. And within two months of the date of our final decision the Council has agreed to remind its officers about its complaint handling procedures and timescales.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. I find fault causing injustice. The Council has agreed to carry out the above actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman