Summary: There was delay by the Council in assessing Mr X’s child’s special educational needs and issuing a final Educational, Health and Care Plan that provided additional support. There was also fault in failing to consider if the Council’s duty under s.19 Education Act to provide full-time education was triggered, or to keep a part-time timetable under review. As a result, Mr X’s child did not receive alternative education on par with what they could expect to receive in school. There was also service failure in the transfer of records. The Council has agreed to apologise, make a symbolic payment and make service improvements.

The complaint

1. Mr X complains on his own behalf and on behalf of his child, that the Council failed to meet his child’s educational needs. Mr X says the Council:
• Twice refused an assessment for an Education, Health and Care (EHC) Plan against advice from professionals.
• Reversed the decision to carry out an assessment only because Mr X threatened to appeal and not because of any new evidence.
• Delayed in completing the EHC needs assessment and named a pupil referral unit (PRU) as a permanent placement, which he considers unsuitable.
• Failed to provide suitable fulltime education under s.19 Education Act 1996 when Y was permanently excluded from school and attended the PRU.
• Failed to communicate or arrange meetings in a timely way during the EHC needs assessment.
• Failed to adhere to its own complaint procedure or consider Mr X’s comments on the Council’s complaint response.
• Failed to ensure safeguarding information was shared between settings.
2. Mr X says that because of the Council’s fault:
• Y has not received suitable fulltime education since Winter 2022.
• Y was placed in unsuitable and parttime alternative provision.

This has had a detrimental impact on Y’s education and mental health.

3. Mr X wants the Council to:
• Put correct support in place.
• Make sure the same thing does not happen to another child.
4. Mr X has also raised concerns about the failure of a previous school to pass on information including about safeguarding issues.

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The Ombudsman’s role and powers

5. 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)
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
7. 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)
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
9. 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)

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What I have and have not investigated

10. I have investigated:
• Whether there was delay in the EHC process.
• Whether there was a failure by the Council in transferring safeguarding information between placements.
• Whether there was a failure to provide suitable fulltime education under s.19 Education Act 1996 before an EHC Plan was issued.
• Whether there was fault in complaint handling.
11. I have not investigated the decision to name the PRU in the final EHC Plan. The Ombudsman cannot make decisions about placements, only the Council and Tribunal can do this. Mr X had a right of appeal against the final EHC Plan which we would have expected him to use if he disagreed with the Plan.
12. I have not investigated the actions of the school; schools are not within the jurisdiction of the Ombudsman.

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How I considered this complaint

13. I have considered information provided by Mr X and the Council.
14. I have considered relevant law and statutory guidance.
15. Mr X and the organisation had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
16. 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 found

Alternative education

17. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. When the reason for being out of school is permanent exclusion councils must provide suitable fulltime education within six days.
19. The Department for Education guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. The guidance says a part-time timetable must not be treated as a long-term solution.  Councils may need to intervene and provide s.19 education to make provision up to fulltime even when a pupil is attending an education setting part-time.
20. 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
21. We made six recommendations. 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

EHC Plans

22. 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).

Key events

23. Mr X attributes a decline in his child’s mental health to an incident in 2022 when he says his child was the victim and the police were involved. Around this time there were concerns about attendance and a referral to early help. The school was considering a part-time timetable.
24. Two months after this incident Mr X’s child was permanently excluded. A place was allocated at a Pupil Referral Unit (PRU). Mr X had some concerns about his child attending, but his child did start there in early 2023.
25. Mr X says there was a failure to transfer safeguarding records, including reports of bullying, absconding, and concerns flagged by external agencies, between the school and PRU. Mr X has identified via his own enquiries that changes by the Council to its information systems meant the school was unaware information had not been transferred in the usual way. Mr X says the service failure to transfer important information was a serious matter which has left him with the uncertainty of whether the PRU did not have full knowledge of his child’s vulnerabilities and led to his child being misinterpreted and unsupported.
26. Mr X has said he had to personally transfer files as the PRU had limited information. Mr X says the absence of this information prevented the PRU meeting his child’s needs and meant his child was labelled a ‘troublemaker’. He says his child’s attendance reduced.
27. An Educational Psychologist (EP) saw Mr X’s child at the PRU in early 2023 and Mr X’s child also received an autism diagnosis around this time.
28. In Spring 2023 the EP noted Mr X’s child was attending the PRU four half days per week on a reduced timetable, agreed with Mr X, with a view to increase this once Mr X’s child was more settled.
29. Mr X says the Council refused a request for an EHC needs assessment stating needs could be met within the ordinary resources allocated to the PRU.
30. Evidence from the PRU in Summer 2023 identified Mr X’s child had deteriorated significantly since starting there. The PRU told the Council it could not meet needs. Mr X’s child was being educated off-site but still not managing offsite 1:1 provision.
31. The PRU told the Council Mr X’s child would require an EHC Plan. The off-site 1:1 provision had been arranged on professional advice and was beyond the PRU’s usual resources. The PRU said Mr X’s child was attending one hour per day and would need an EHC Plan to reintegrate into education.
32. Mr X told me he did not know these views from the PRU until he accessed his child’s records in Spring 2024.
33. Mr X says he complained about lack of education in late 2023 and again requested an EHC needs assessment, which was again refused by the Council. Mr X told the Council he would appeal the refusal to assess. The Council then reversed its decision in early 2024 and agreed to carry out the assessment.
34. An EP provided advice in early 2024 which confirmed Mr X’s child was still accessing only 90 minutes education per day.
35. The Council issued a draft Plan in Spring 2024. Mr X asked for amendments and there is correspondence showing he was chasing the Council for a response. The Council then offered a meeting and said it would amend the draft. Mr X agreed to the meeting, but then two months after offering the meeting Council issued the final Plan before any meeting took place.
36. Mr X says in Summer 2024 his child reached crisis point after a prolonged lack of appropriate support for their special educational needs. He says professional advice warning of risks had been ignored by the Council.
37. The Council issued a final EHC Plan in Summer 2024 naming the existing PRU as the placement. Mr X says the Plan does not properly reflect his child’s needs and as it was issued before the summer holiday he did not appeal as he did not know whether the support would be successful until the new term started.

Complaint handling

38. The Council maintained that in Summer 2023 the evidence did not meet its threshold to assess for an EHC Plan. The Council did apologise for not meeting to discuss the EHC Plan before a final version was issued.
39. The Council’s response acknowledged Mr X’s child had not accessed fulltime education but said it was working with the PRU to increase this.
40. Mr X told me in early 2025 that, due to time out of education, his child would not now have full access to GCSE’s. Mr X provided an email with the PRU where he was pushing for additional support, following which provision increased. He told me his child was now receiving online learning, counselling, mentor sessions and a work-based placement. Mr X considers such provision should have been in place much earlier and then his child might have still been able to access GCSE’s.
41. The Council agrees Mr X’s child had not received fulltime education but told us it had funded a full-time place at the PRU which has smaller classes and a high teacher: pupil ratio with the ability to adapt to complex needs of pupils. It did not provide any medical evidence supporting Mr X’s child could not access full-time education, but said Mr X agreed his child could not manage this and ‘would need to build up in relation to his anxiety’.
42. The Council investigated the complaint about failure to share information as a data breach. It said it was satisfied all necessary information had been shared through other methods like the PRU Passport and verbal communication between the school and PRU. After further investigation by Mr X, he discovered a problem with the Council’s systems had affected the sharing of data at the time.
43. Mr X queried why his complaint was not responded to at stage 1 and 2 by different people, although the policy stated it would be considered afresh at stage 2 by someone not previously involved. The Council explained that its policy allowed it to log the complaint straight to stage 2 where this was considered appropriate due to the nature of the complaint, and this was why Mr X had only received responses from one person because there had not been a stage 1 response. Mr X told me he believed he had raised issues at stage one, and he referred in his correspondence to ‘stage one’, which the Council did not challenge, and therefore a stage two investigation should have been offered and undertaken by a separate officer.

Analysis

Information sharing

44. Research by Mr X has identified there was a data system change by the Council that affected the sharing of information held on the school’s Child Protection Online Management System when Mr X’s child moved from school to the PRU. This was service failure; however, it is not possible to say if this fault adversely affected Mr X’s child’s education. The Council points to information also being shared directly between the settings, and by Mr X, and gathered by the EP.
45. I acknowledge Mr X has been left with the uncertainty of whether the service failure in the transfer of important information meant there was crucial history about his child the PRU was unaware of, and I acknowledge that Mr X believes this may have led to his child being misinterpreted and unsupported. This uncertainty is an injustice.

EHC needs assessment

46. Mr X’s request for assessment in Summer 2023 was refused. The Council’s panel decided the PRU needed to follow recent advice received from an EP and needs could be met by the ordinary resources of the PRU.
47. I have not identified any fault in the way the Council made its decision and so cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
48. Shortly after this decision the Council received information from the PRU that Mr X’s child had deteriorated since starting there and was only able to access education off-site for one hour per day. The PRU did not consider it could meet needs and said Mr X’s child would not be able to reintegrate without an EHC Plan.
49. S.36(8) of Children and Families Act 2014 says the council must secure an EHC needs assessment if the child or young person has or may have special educational needs, and it may be necessary for special educational provision to be made in accordance with an EHC Plan. An assessment can be triggered either by a request being made by a parent, school or young person, or by the Council on its own initiative if a child is brought to its attention.
50. I find the information received from the PRU meant Mr X’s child was brought to the Council’s attention as a child who may require an EHC Plan. The receipt of this information should have led the Council to consider whether it needed to overturn its previous decision and carry out an assessment. If the EHC needs assessment had started in Summer 2023, the twenty-week process would have been complete by the end of 2023, six to seven months earlier than was the case.
51. Instead, Mr X made a further request in Autumn 2023. At that time Mr X was unaware the PRU had provided a view that it could not meet need and was already offering provision beyond its usual resources.
52. The Council again refused the request on the basis there was insufficient evidence of special educational provision required above that ordinarily available within the setting.
53. The threshold for assessment is low. Insufficient evidence is not a basis to refuse an assessment. To refuse, a Council must be satisfied it has a full picture of a child’s needs, and these can be met without an EHC Plan. If the Council does not have enough evidence to make this determination, then that is a reason to do the assessment.
54. The Council’s records do not show it considered the PRU advice or acknowledge that a very restricted part-time timetable offsite was continuing. This is fault. The panel record states Mr X’s child had no external professional involvement, which was not accurate, as there was EP involvement and Mr X was in touch with mental health services. The Council’s decision does not show how it considered all the evidence, including from the PRU. This is fault and casts doubt on the decision it reached.
55. The Council reversed its view at mediation based on existing, not new, evidence. This supports Mr X’s view a decision to assess could have been made earlier.
56. Mr X has the uncertainty whether, if an EHC Plan had been in place in late 2023, not Summer 2024, this would have altered the educational outcome for his child. This uncertainty is an injustice.

Final EHC Plan

57. The EHC plan process should have taken no more than 14 weeks after the Council reversed its decision and agreed to assess. The process took 6 months. This delay is fault. While Mr X did have suggested amendments the 14-week process allows time for parental comments and meeting parents, and this does not explain the period of delay. There is evidence that Mr X had to chase the Council to respond.
58. When the EHC Plan was finalised, it named the existing PRU Mr X’s child was already attending but with additional funding for 1:1 support. If Mr X disagreed with the wording or placement in the final Plan, he had a right of appeal we would have expected him to use.

Part-time education

59. Mr X and the PRU agreed a temporary part-time timetable in Spring 2023, but I have seen no evidence Mr X consented to this continuing for a further two years. There is no medical evidence to support a long-term part-time timetable on health grounds, which is the only basis one can be used.
60. I find the Council was aware, including via its own EP advice, that despite starting at the PRU in early 2023 one hour a day, Mr X’s child was still only accessing 90 minutes of off-site provision per day a year later.
61. The decision whether a pupil is medically fit to attend their education setting full-time or requires alternative provision is legally a decision for the Council, not the PRU or Mr X. The Council should have considered if there was a legal basis for a part-time timetable and kept the part-time timetable under regular review. I have seen no evidence the Council held any reviews of the part-time timetable or considered its s.19 duty over a two-year period. This is fault. The law and guidance is clear that being on roll at a setting does not alter the s.19 duty may be triggered and a Council may need to step in to supplement part-time education.
62. As the Council did not carry out any reviews, make any s.19 decisions and collected no evidence, it is uncertain what it might have decided if it had followed the correct process. The fact that after pressure from Mr X provision has recently been increased would suggest that Mr X’s child could manage more education than 90 minutes per day. I find Mr X’s child has missed out on education as they have been provided with only 60-90 minutes per day education for two years, when they have an entitlement to fulltime education.

Communication

63. I have found there were occasions when Mr X had to chase the Council for a response. I have also identified delays, as set out above, in Mr X’s child having their needs assessed and receiving their EHC Plan.

Complaint handling

64. I acknowledge there is a difference between the Council and Mr X about whether his concerns were dealt with at stage one or handled directly at stage two. I am not persuaded it is proportionate to investigate this further. Mr X has now had his complaint investigated by the Ombudsman. I have identified fault, set out above, which the Council did not identify via its local process.

Injustice

65. As a result of the fault identified above, Mr X’s child has suffered the following injustice:
• A delay of at least six months in obtaining additional support via an EHC Plan.
• Partial loss of education over a two-year period. There is some uncertainty over the amount of education Mr X’s child could access even if there had been no fault.
66. Mr X has suffered injustice due to uncertainty of whether if events had been different, and fault had not occurred, the outcome for his child might also have been different.

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Agreed action

67. Within four weeks of my final decision the Council will apologise to Mr X and his child for the fault and the impact this has had.
68. Within four weeks of my final decision, the Council will pay Mr X on behalf of his child £7200, being £1200 per term for 6 terms of missed provision. This takes into account Mr X’s child may not have managed to access fulltime provision in any event. My understanding is provision was increased in early 2025.
69. Within two months of my final decision, the Council will review its decision processes for EHC needs and assessments and s.19 education to ensure:
• Decisions are made promptly when a child comes to the Council’s attention.
• All evidence is considered, and the Council’s records show what weight it has given evidence available and, if it departs from evidence, its rationale for why it has done so.
• Decisions are communicated to families, in writing, with reasons, explaining what evidence has been considered and the rationale.
70. Within two months of my final decision, the Council will ensure it has processes in place to keep part-time timetables under review and to increase them when possible. The Council should ensure part-time timetables are only used when there is a medical basis to do so, or as a short-term measure to reintegration and there is follow up to ensure a planned reintegration is successful.
71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. I have found fault causing injustice. There was delay in assessing Mr X’s child’s SEN and issuing a final EHC Plan that provided additional support. There was also fault in failing to consider if the Council’s duty under s.19 Education Act to make provision up to full-time education was triggered or to keep a part-time timetable under review and ensure access to an education on par with what Mr X’s child could expect to receive in a school. There was service failure in the transfer of records. I consider the agreed actions set out above are a satisfactory resolution for the fault and injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman