Summary: Mrs X complained the Council did not meet the legal timescale to issue her son Y’s Education, Health and Care Plan, did not secure the special educational provision in the plan, and did not secure suitable alternative educational provision. We find the Council at fault for not meeting the legal timescale, and not securing all his special educational provision. This caused distress and missed special educational provision. The Council has agreed to apologise and make a symbolic payment to remedy the injustice.

The complaint

1. Mrs X complains about how the Council handled her son Y’s special educational needs. In particular she complains the Council:
1. Did not meet the statutory timescale when completing the Education, Health and Care (EHC) Needs Assessment.
2. Did not secure the special educational provision in his EHC Plan.
3. Did not secure suitable alternative educational provision when he could not attend school full time.
2. She says this caused a significant negative impact on Y’s education and wellbeing and caused the family significant distress.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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(1), as amended)

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What I have and have not investigated

9. I have investigated from 26 September 2023, when the Tribunal ordered the Council to carry out an EHC Needs Assessment. I have investigated until 23 October 2024, when the Council provided its final stage two complaint response.
10. Mrs X first complained to us on 9 October 2024. Matters before 9 October 2023 are therefore late. In order to properly make sense of Mrs X’s complaint I have decided I need to consider the Tribunal’s order. This happened less than a month longer than the 12 month limit. I have decided this is a good reason to exercise my discretion to investigate from 26 September 2023.
11. Mrs X raised concerns about new matters and ongoing injustice that happened after the Council’s final stage two complaint response on 23 October 2024. I have not investigated beyond that date because the law says the Council should usually be given a reasonable opportunity to investigate matters before we do. I have seen no reason to exercise my discretion to investigate those new matters in this case. It is also because Mrs X has made an appeal to the Tribunal and I cannot overlap with the role of the Tribunal.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
14. 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

Relevant law and guidance

EHC plans

15. 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 which include: 

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

16. 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. 

EHC Needs Assessments and Plans following a Tribunal order.

17. 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.
18. Where a right of appeal has been used against a council’s decision not to carry out an EHC Needs Assessment, and the Tribunal has ordered it to do so, the process and time limits for carrying out an assessment is laid out in the Code and The Special Educational Needs and Disability Regulations 2014. It says the following:

• The council shall notify the child's parent or the young person that it shall make the assessment within 2 weeks of the Tribunal’s order.
• Where the council decides an EHC Plan is not necessary, it shall notify the child's parent or the young person within 10 weeks of the Tribunal’s order.
• Where the council decides an EHC Plan is necessary, it must finalise the plan within 14 weeks of the Tribunal’s order.

19. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

Maintaining the EHC Plan 

20. 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). 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)  

Rights of appeal

21. There is a right of appeal to the Tribunal against further matters including a council’s description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
22. 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)
23. 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 EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
24. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Alternative educational provision

25. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
26. Arranging Alternative Provision, A Guide for Local Authorities and Schools (the alternative provision guidance) says there is no absolute legal deadline by which councils must start to arrange education for children with additional health needs. However, when it has been informed by the home school that the child will be absent for 15 days or more they should begin the process of arranging suitable alternative provision.
27. It should do so by considering the reasons for the absence, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
28. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.

What happened

29. This is a summary of key events. It is not a detailed chronology of everything that happened.
30. Y was in school year 6 of a state-funded primary school in 2023. I shall refer to the school as School A.
31. On 26 September 2023 the Tribunal ordered the Council to complete an EHC Needs Assessment.
32. On 16 October the Council contacted Mrs X to say it would carry out an assessment. It acknowledged it should have contacted her sooner, explained there had been an oversight and apologised.
33. An Educational Psychologist (EP) assessed Y in November. The EP sent the Council their advice.
34. On 15 December the Council decided to issue an EHC Plan. The 14 week deadline for finalising the plan was reached on 2 January 2024. The Council did not meet the deadline.
35. In February 2025 the Council sent Mrs X a draft EHC Plan for her comment. It explained Section I would be left blank until it named a school. It asked Mrs X to let it know what her preferred school was. It said it would consult schools once she had agreed the draft.
36. Mrs X had a preference for Y to remain at School A for the rest of year 6. She had a preference that he start year 7 in September at a particular state-funded secondary school. I shall refer to the secondary school as School B.
37. In March the Council consulted both School A and School B with a view to naming them in Y’s EHC Plan. It considered the schools’ responses.
38. On 26 April the Council issued Y’s EHC Plan. Section I named School A for the rest of year 6, and then School B for the start of year 7 from September 2024.
39. On 17 June Mrs X complained to the Council. She complained the Council failed to:

• Meet the deadline when issuing the EHC Plan.
• Secure the special educational provision in the EHC Plan since it had been issued.
• Provide alternative education since Y stopped being able to attend full time education since November 2022.

40. The school term ended and Y left School A about a month later in July.
41. The Council responded to Mrs X’s complaint on 8 August. It accepted delays in completing the EHC Needs Assessment. It apologised for the frustration and anxiety it caused.
42. Mrs X was not satisfied with the Council’s response. She asked the Council to escalate it to the second stage of its complaints process on 20 August.
43. Mrs X first complained to us on 9 October. We decided not to consider her complaint at that point because the Council had not provided its response to her second stage complaint.
44. On 23 October the Council responded to Mrs X’s second stage complaint. Mrs X contacted us again in August 2025 because she was not satisfied with its response.

Analysis

45. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
46. We cannot always respond to complaints in the level of detail people might want. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
47. I have not referred to every element of the information about this complaint, but I have not ignored its significance.
48. I address each part of Mrs X’s complaint in turn below.

a) Did not meet the statutory timescale when completing Y’s EHC Needs Assessment.

49. The Council should have issued Y’s finalised EHC Plan by 2 January 2024. This was the 14 week deadline after the date of the Tribunal.
50. The Council issued Y’s EHC Plan on 26 April. This was 16 weeks beyond the 14 week deadline. This delay was fault.
51. The delay caused Mrs X injustice because it delayed her knowing the content of Y’s EHC Plan including his educational placement, and her right to appeal had she chosen to do so.
52. I also find it caused injustice in the form of missed special educational provision for the reasons explained in part b) below.

b) Did not secure the special educational provision in Y’s EHC Plan

53. Most of the special educational provision in Section F of Y’s EHC Plan was a detailed list of specific interventions by school staff. Each of the interventions were quantified by time. The total time of the interventions Y was entitled to was more than 9 hours per week.
54. I have seen no evidence Mrs X disagreed with the special educational provision or the educational placements in the EHC Plan. I have therefore decided paragraph 23 does not apply. This means I have decided I am able to make findings on whether the Council took appropriate steps to secure the quantifiable special educational provision, and any alternative educational provision Y may have been entitled to.
55. I find the fault of delay referred to in part a) above caused injustice of missed special educational provision from 2 January until 26 April. This is because I have decided, on the balance of probabilities, School A would have delivered special educational provision sooner had the Council finalised the EHC Plan on time.
56. This caused injustice because Y did not receive any of the provision that he would have been entitled to, but for the fault, for one whole term. This was the second term of year 6.
57. I have considered the period after 26 April with reference to School A and School B’s consultation responses.
58. Both schools noted and raised concerns about the nine hours of interventions. They both said they would be able to provide some, but not all, of the interventions. I have seen no evidence the Council took steps to identify and secure the interventions that the schools would not be able to provide.
59. I therefore find, on the balance of probabilities, Y received some but not all the interventions. For this reason I find the Council at fault because it failed its duty to make sure Y received all the special educational provision set out in his EHC Plan. I make this finding in line with paragraph 20.
60. This caused injustice because Y did not receive all of the provision that he was entitled to for about one and a half terms. This was the third term of year 6 and first half term of year 7.
61. I have considered the extent of the injustice in line with our Guidance on Remedies. I have decided the injustice should be acknowledged with a symbolic payment. This should be £300 for the first term when Y received no special educational provision, and £150 per term for the next term and a half when Y received some, but not all, of the special educational provision. I therefore recommend the Council remedy this injustice with a total symbolic payment of £525.
62. This payment is intended to remedy the injustice of distress from the missed provision, delayed appeal rights, and consequential injustice caused to the family.
63. I have decided not to recommend service improvements. This is because the Council has provided evidence of service improvements about similar faults in the time since the events in this case.

c) Did not secure suitable alternative educational provision.

64. I acknowledge Mrs X said Y had not been in full time education since 2022 in her stage one complaint. I have not considered the Council’s actions before September 2023 for the reasons explained in paragraph 11.
65. I also acknowledge Mrs X said the Council wrongly referred to a pupil inclusion service referral in 2024 in its second stage complaint response. I have decided, on balance of probabilities, this was a typographical error in the response. The pupil inclusion service referral appeared to have happened in the Summer of 2023. It is therefore outside the scope of my investigation.
66. For the period I investigated, I have seen no evidence the Council made a recorded decision about whether it should secure alternative educational provision for Y. I have considered whether it should have.
67. I have seen no evidence School A or School B informed the Council that Y was absent for 15 days or more. This would have been the absence trigger for the Council to consider arranging alternative educational provision as explained in paragraph 26.
68. For this reason I find no fault regarding the absence of a recorded decision about alternative provision.
69. I have decided it is relevant that the evidence shows the Council acted broadly in line with the parts of the alternative provision guidance summarised in paragraphs 27 and 28.
70. I make this finding because the Council considered the attempts School A and School B made to support Y to attend. It did this as part of the EHC Needs Assessment process when it considered the EP advice and consultation responses from both schools. I have seen no evidence the EP or schools said Y could not attend nor identified any need for alternative provision.
71. For these reasons I have decided I cannot find, even on balance of probabilities, that the Council would have decided it owed a duty to secure alternative educational provision had Y met the 15 day absence trigger.

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Action

72. Within four weeks of this final decision the Council will:
1. Apologise for the injustice. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Make a symbolic payment of £525 to Mrs X to acknowledge the injustice. I recommend Mrs X use the money for Y’s educational benefit.
73. The Council should provide us with evidence it has complied with the above actions.

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Decision

74. I find the Council at fault for missing the legal deadline to issue the Education, Health and Care Plan, and for not securing all the special educational provision, causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman