Summary: Ms X complained the Council delayed issuing her child’s first Education, Health and Care (EHC) Plan, did not provide a suitable secondary school place, and failed to provide alternative education. There was delay in issuing a final EHC Plan and delayed appeal rights, but no failure to provide education. The Council has agreed to apologise, pay Ms X £1000 to acknowledge the fault, and make service improvements.

The complaint

1. Ms X complained the Council:
• Delayed issuing her child’s first Education, Health and Care (EHC) Plan for over nine months;
• Failed to name a suitable secondary school or provide alternative education;
• Consulted schools which were unsuitable including some with the wrong age range;
• Refused to finalise the EHC Plan until it had exhausted all consultations of local mainstream schools, extending the delay;
• Apologised for delays but failed to move things forward.
2. Ms X says because of the alleged fault her child has not been able to attend school since they left primary school in Summer 2024 although there was a place available at Ms X’s preferred (independent specialist) school. Ms X says while there is a dispute between her and the Council about the type of school that is suitable, had the EHC Plan been completed on time she could have appealed to the Tribunal nine months earlier and resolved the situation sooner.

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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. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
5. 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)
6. 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.
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 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)
9. 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.
10. 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.
11. 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

12. I have investigated the EHC process and council duties where a child is not attending school up to February 2025. The Council’s stage two complaint response was provided in February. I am satisfied the Council has considered events up to February 2025 via its own complaint process.
13. I have not investigated any new complaints after February; the Council had not had an opportunity to consider these under its own complaint process and it would be premature for the Ombudsman to do so.
14. The Council issued the final EHC Plan in February 2025. Ms X has appealed the final EHC Plan to the Tribunal on the grounds that the type of school (mainstream) and named school are unsuitable. I cannot investigate any decision which is the subject of an appeal, or the consequences of a decision that has been appealed. This means I cannot consider any alleged failure to put in place alternative education after the issue of the final EHC Plan. I am satisfied Ms X’s child’s absence from school cannot be separated from the suitability of the type of placement named, which is the same matter Ms X has asked the Tribunal to resolve. The Ombudsman has no jurisdiction to investigate where someone has asked a Tribunal to consider the same matter.

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How I considered this complaint

15. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
17. 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 needs assessment

18. 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. 
19. 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).

20. As part of the assessment, councils must gather advice from relevant professionals (Special Educational Needs and Disability Regulation 6(1)). Those consulted have a maximum of six weeks to provide the advice. 
21. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s 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. 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.
25. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal;
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

26. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Alternative education

27. 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.
28. 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 courts have said the fact that parents have objections to a particular school does not necessarily mean the Council is obliged to make alternative arrangements. Whether it is reasonable for the child to attend is “a question to be answered objectively, not by reference to the parents’ view of the facts”. 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)
29. 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
30. 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.

31. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

School attendance / elective home education

32. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school.
33. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
34. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.  
35. Section 437 (1) of the Act says that councils shall intervene if it appears that parents are not providing a suitable education. They can serve a notice in writing on the parent asking the parent to demonstrate that the child is receiving a suitable education. 

Key events

36. Ms X’s child was attending a mainstream primary school and was due to transfer to secondary school in September 2024. The primary school requested Ms X’s child be assessed for an EHC Plan in Autumn 2023.
37. There was a two-month delay by the Council in dealing with the request which the Council said was due to a case officer leaving. In early 2024 the request was agreed. If the Council then decided to issue a Plan this was due in May 2024, being twenty weeks from receipt of the request.
38. The Council did decide to issue an EHC Plan but did not make this decision or issue a draft Plan until Summer 2024. It did not then issue a final EHC Plan until February 2025.
39. The Council said the delay in getting to draft stage was due to delay in receiving professional advice, but this was available in late Spring and does not explain why there was a further three-month delay before a draft was issued.
40. Separate from the EHC Plan process, Ms X had applied for a school place via the usual secondary admissions process, and was allocated a place at School A.
41. School A observed Ms X’s child as part of the usual secondary transition and told Ms X it could not meet her child’s needs. This was also Ms X’s view. School A explained it would have to await formal consultation with the draft Plan (which was still awaited) before confirming it’s view to the Council. School A told Ms X if she did not wish to send her child to School A pending the final EHC Plan, she had the option to electively home educate.
42. The Council’s panel decided in Summer 2024 a mainstream school was suitable and advised officers to consult mainstream schools as well as Ms X’s preference of school (School B) and schools with resource units. Ms X told the Council she would be appealing the decision about the type of school (mainstream not specialist). The Council advised Ms X she would not gain a right of appeal until it had consulted schools and issued a final Plan. Ms X also said she intended to apply for alternative (s.19) provision.
43. The Council provided a complaint response to Ms X in August acknowledging delay in issuing the EHC Plan. It confirmed its decision was for a mainstream school and its expectation was Ms X’s child attend School A in September unless Ms X exercised her right to home educate. The Council would however consult other schools, including Ms X’s preference, with the draft Plan when schools returned in September.
44. The Council told me that correspondence between Ms X and School A confirmed Ms X’s intention was to electively home educate, but that it not my reading of the documents which merely acknowledge Ms X had this right. I have not seen evidence Ms X told School A, or the Council, she would home educate.
45. In September, all the schools consulted declined to offer a place. This included School A which formally stated it could not meet the child’s needs.
46. Ms X did not send her child to School A in September and the Council was aware of this. I have seen no evidence it treated Ms X as electively home educating, for example by referring her to that service for monitoring, or that it referred the case to an attendance officer / EWO.
47. Ms X complained again about delay in early September. Her email referred to the Council ‘pushing [her child] to attend a mainstream school’ which she and School A did not consider appropriate. Ms X again said she intended to apply for alternative provision and currently her child was ‘absent’ until the Council had discussed her child’s needs, and the transition required, with School A.
48. A further complaint response from the Council in November acknowledged delay but said the delay in the EHC Plan had not impacted the offer of suitable education; a mainstream school place had been provided. It referred Ms X back to its first complaint response.
49. The Council continued to consult more schools, unsuccessfully. When Ms X’s initial preference (School B) stated it could not offer a place, Ms X asked the Council to consult an independent special school (School C). The Council said it did not have to do this as the school was not a type it was legally required to consult. It said it would exhaust local options before considering independent schools.
50. Ms X approached School C herself, and School C confirmed it could offer a place.
51. Ms X then asked the Council to finalise the EHC Plan so she could appeal for School C without further delay. The Council said it could not issue a final EHC Plan until it had identified a school to name in Section I.
52. There is evidence in December 2024 of Ms X advising the Council she was awaiting a response about s.19 education.
53. In early 2025 Ms X complained to us. There must by then have been some contact with School A as it approached a transition support service. This service declined to assist on the basis it could not reintegrate into School A as the School had stated it could not meet needs, and Ms X did not want reintegration to School A. Ms X’s child continued not to attend school.
54. Ms X issued a pre-action protocol letter asking the Council to provide s.19 education. Ms X says on receipt of this letter the Council immediately issued a final EHC Plan naming School A in Section I. The Council’s response to the pre-action letter was that the appropriate route to challenge its decision was via the Tribunal and Ms X has registered an appeal. The Council said the EHC Plan would provide funding to School A to arrange a reintegration programme or could be used for alternative provision.
55. A final complaint response issued in February 2025 accepted the EHC Plan was finalised late and the Council apologised.
56. The Council’s complaint responses also acknowledge that it inadvertently consulted some schools that were outside the age range for Ms X’s child.
57. The Council confirmed to School A it remained the named school for the duration of the appeal and the threshold for s.19 education to be provided by the Council was not met.

Analysis

Fault

58. The Council has accepted delay in issuing the EHC Plan. The Plan should have been finalised in Spring 2024. It was issued nine and a half months late. This is fault.
59. The Council has not fully explained why the delay in the EHC process happened. There was a two-month delay in deciding to assess due to a case officer leaving; a delay in preparing a draft after advice was received, which is not explained; and a five-month delay between the draft and final Plan because of unsuccessful consultations with numerous schools. The Council has not indicated what it would do to prevent similar delays in future.
60. The fault happened at a key transition stage between primary and secondary school. If the Plan had been issued on time Ms X would have gained appeal rights nine months earlier. The Tribunal’s policy is to prioritise phase transfer appeals, so Ms X may have got a Tribunal decision as early as Autumn 2024. This delay in appeal rights is itself an injustice.
61. Ms X asked the Council to finalise the Plan in Autumn 2024 so as not to delay her appeal rights further. The Council wrongly told Ms X it had to have a school to name on the Plan. This is not correct; councils can issue final plans that name a type of school or no school. The Council eventually named the mainstream school allocated through the usual secondary admissions process. It could have finalised the Plan to provide an appeal right much earlier.
62. The Council gave clear advice to Ms X in Summer 2024 its decision was her child could access mainstream schooling, and it expected her to send her child to School A in September unless she chose to home educate. The courts have been clear a decision whether a school is accessible for a child, or s.19 education is required, is one for the Council to make. The Council was aware of Ms X and School A’s views. Its decision that mainstream was suitable was made by a panel after consideration of professional advice received. As there was no fault in the way the Council made its decision, I cannot question the decision it reached. I also cannot comment on the suitability of a mainstream school or naming of School A in the EHC Plan. This will be for the Tribunal to decide as part of Ms X’s appeal.
63. A school place at School A remained available throughout. The Council repeated advice in November, and early 2025, it considered School A remained suitable and s.19 education would not be provided. While Ms X continued to raise this issue, I am not persuaded there was any failure by the Council to explain its position or that Ms X was misled.
64. The Council told me Ms X had informed School A she would be electively home educating until a final EHC Plan was issued. I have not seen evidence Ms X advised School A or the Council this is what she was going to do. There is also no evidence Ms X was referred to an officer who oversees home education or received any visits between September 2024 and February 2025 to check she was providing a suitable education at home.
65. The Council could potentially have done more to follow up with Ms X and School A when Ms X’s child did not attend. It does appear the absence from school was allowed to drift over Winter 2024 when consulting schools took longer than anticipated. The Council could have considered measures to secure attendance. However, Ms X also had a duty to ensure her child received suitable education.
66. I am not persuaded it was for the Council to sort out the reintegration of a child with no final EHC plan into a mainstream school; this would usually be a matter between the parent and school. The actions of the school are not within our remit. There clearly was a failed referral to the reintegration service, but this appears to be in response to Ms X’s views on integration, rather than any failure by the Council to communicate its position about Miss X’s child attending School A.

Injustice

67. There was a delay of over nine months in finalising an EHC plan and incorrect advice given by the Council it could not finalise without a successful school consultation. This was fault and delayed Ms X’s right of appeal at a crucial time. The outcome of the appeal is not yet known. The loss of appeal rights and continued uncertainty about the appeal outcome is itself an injustice.

Agreed Action

Within four weeks of my final decision:

68. The Council will apologise for its incorrect advice about when a final EHC Plan can be issued, which caused additional delay.
69. The Council will provide clarification to officers to ensure they fully understand the law about issuing final Plans and properly consider requests from families to finalise plans, even on an interim basis, to allow for prompt appeal rights.
70. The Council will pay Ms X, on her child’s behalf, £1000 for the impact of the delay in issuing a final Plan, delayed appeal rights and uncertainty.
71. The Council will provide us with evidence it has complied with the above actions.

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Decision

72. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman