Summary: Mrs Y complained about the way the Council dealt with her child Z’s educational provision. We have found fault by the Council, causing injustice, in its: delay completing the EHC needs assessment; delay issuing the final EHC Plan; communication failures; and failure to properly consider its duty to, and, provide Z with suitable alternative provision. To remedy the injustice the Council has agreed to: apologise and make payments to recognise the impact of the missed education: and upset, frustration and uncertainty.

The complaint

1. Mrs Y complains about the way the Council has dealt with her child, Z’s educational provision. She says the Council failed to:
1. complete Z’s Education Health and Care (EHC) needs assessment and issue their EHC Plan within the statutory timescales; and
2. provide Z with suitable alternative educational provision while they were unable to attend school.
2. Mrs Y says because of the Council’s delays and failures, Z missed out on their education. This caused Mrs Y and the family significant upset, stress and uncertainty. It also impacted them financially as Mrs Y was unable to work while Z was out of education.
3. She wants the Council to provide Z with suitable alternative provision until they are able to return to school, and reimburse them for the cost of the provision they had to arrange because of the Council’s failure. She also wants it to pay redress for the distress caused.

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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.
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. 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)
7. 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)
8. 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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How I considered this complaint

9. I considered evidence provided by Mrs Y and the Council, as well as relevant law, policy and guidance.
10. Mrs Y 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

What should have happened

Education, Health and Care Plan

11. 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.
12. 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.
13. 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.

Timescales and process for EHC assessment 

14. 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). 

15. As part of an EHC needs assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. 

Alternative provision – the 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. 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

18. 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
19. We made six recommendations. These were that 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.

What happened

20. 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.

January 2024 to March 2024: Request for an EHC needs assessment

21. In January 2024 Mrs Y asked the Council to carry out an EHC needs assessment for Z. The Council told Mrs Y in February 2024 it would not agree to the request.
22. The Council then decided on 26 March 2024 it would carry out the assessment and started the assessment process.

Secondary school place and attendance from September 2024

23. Z was in their last year at primary school. School A was the family’s first preference secondary school for Z in September 2024, but they were offered a place at school B.
24. In July 2024, Mrs Y told the Council their appeal for a place at school A had been unsuccessful and Z did not want to attend school B in September 2024. Mrs Y asked the Council to provide Z with a combination of alternative learning provision and home education while they awaited the outcome of the needs assessment.
25. Z did not attend school B in September 2024. The school told the Council, on 24 September 2024, Z had been absent since the start of the school year.

September 2024: Mrs Y’s complaint

26. Z’s needs assessment should have been completed by mid-July, but the process was still ongoing in September 2024.
27. On 16 September Mrs Y complained to the Council about the delay and its communication failures. She told it Z was without any educational provision. School B was not providing any education and Mrs Y was funding Z’s education materials for use at home.
28. The Council said, in response to the complaint:

• the delay with the assessment was because of the shortage of Educational Psychologists (EP). There was a waiting list for the allocation of cases to EPs and it had not yet been able to allocate Z’s case.
• it apologised for the delay and its failure to respond to Mrs Y’s requests for contact about the assessment; and
• Z’s school was responsible for their education because Z did not have an EHC Plan at this stage. The school should make educational provision for Z if they were not able to attend school.

October 2024: Mrs Y’s request for alternative provision

29. On 9 October Mrs Y asked the Council to arrange alternative provision for Z because they were unable to attend school. She said:

• a reduced level of educational provision would be suitable while the needs assessment process was still ongoing; and
• she had been in contact with the Council’s Education Inclusion (EI) team and visited some alternative provision providers including Provider A.

30. On 16 October the EI team recorded:

• Mrs Y said Z could not attend school B. She had provided a GP letter requesting a move to their preferred school A due to Z’s social anxiety;
• Z’s attendance was currently 0%, attendance at primary school was 92%; and
• Mrs Y had asked for alternative provision. Z’s school had offered a flexible approach to supporting them into education.

31. On 17 October an EI officer had a meeting with school B about Z’s attendance. The Council’s record says:

• Mrs Y had asked the school to arrange alternative provision for Z;
• the school had a meeting with Mrs Y to discuss a way forward. It would introduce a very reduced phased timetable; and
• the officer asked the school to explore external therapeutic interventions. The school said it did not have the financial resources for this.

30 October 2024: Council’s further response

32. The Council told Mrs Y:

• Z’s case would be allocated to an EP in November;
• it was starting discussions with school B about Z’s alternative provision;
• it had devolved funding for alternative provision to schools. Under this arrangement schools should provide pupils with appropriate educational provision in accordance with regulations and guidance, including section 19. The school was responsible for commissioning alternative provision for Z; and
• Z had been without education for eight weeks. The Council would now commission provision, as an interim arrangement, to enable them to engage with school while discussions with school B about suitable alternative provision continued.

33. I understand two hours a week therapeutic therapy was arranged for Z to support their engagement with school.

November to December 2024: Completion of the EHC needs assessment

34. The EP completed their report in early November. The Council completed its assessment at the end of November.
35. On 5 December, the Council’s Panel considered the assessment and decided to issue Z with an EHC Plan.
36. A draft plan was issued on 16 December.

December 2024: Council’s final response to Mrs Y’s complaint

37. The Council said:

• the EP’s advice was that Z would benefit from a gradual supported return to school alongside educational provision away from school and therapeutic provision;
• it upheld the complaint about the delay completing the EHC needs assessment;
• the school should have arranged any alternative provision needed for Z: and
• it would not re-imburse the cost of the alternative provision Mrs Y had privately funded for Z with Provider A. There had been no prior agreement about this.

38. Mrs Y was unhappy with the Council’s response and brought her complaint to us in December 2024.

January 2025: Alternative provision package

39. On 7 January Mrs Y was told by Provider A the Council had agreed it could provide Z with an alternative provision package of 10 hours a week.
40. Mrs Y told the Council 10 hours did not meet the requirement for a suitable education outside of school.
41. I understand Z started receiving 10 hours a week of alternative provision with Provider A on 3 March 2025. This was increased to 12.5 hours a week at the start of the summer term 2025. The therapeutic provision continued until April 2025.

May to June 2025: Final EHC Plan and new placement

42. The Council issued Z’s final EHC Plan on 8 May. This named a specialist school as Z’s placement.
43. Z started at their new placement on 2 June 2025.

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

(a) Delay completing the EHC needs assessment process

44. The Council has accepted the delay completing the EHC needs assessment. It should have completed the assessment and decided whether to issue Z with an EHC Plan by 16 July 2024. It did not do this until 5 December 2024 – nearly five months outside the statutory timescale.
45. The Council has explained the delay was due to the shortage of EPs available to carry out the report required for the assessment.
46. Service failure can happen when an organisation fails to provide a service as it should have done, without any blame or bad faith but because of circumstances outside its control.
47. We recognise there is a national shortage of Eps. The Council tried to reduce delays by procuring external private EP support for its in-house EP team. I accept the delay completing the assessment was due to service failure, but this is fault.
48. There was then a further delay by the Council in issuing Z’s final EHC Plan. This should have been issued by 13 August 2024. But it was not issued until 8 May 2025, nearly eight months outside the statutory timescale. The Council has not explained the reason for the further delay.
49. The delay issuing the final EHC Plan was fault.

Impact of the delays

50. This delay completing the assessment and deciding whether to issue a plan caused Mrs Y uncertainty and frustration.
51. In line with our Guidance on Remedies, I consider a symbolic payment of £100 for each month outside the statutory timescales for completing the assessment is an appropriate remedy for the frustration and uncertainty the delay caused Mrs Y.
52. I am not able to say what Z’s SEN provision would have been had their final EHC Plan been issued in August 2024. But the delay caused Mrs Y further uncertainty and upset.

(b) Failure to provide suitable alternative provision

53. In my view, in accordance with the expectations in our guidance, the Council should have:

• investigated Z’s circumstances shortly after it was told in September 2024, they were not attending school; and then
• considered whether it had a duty to make alternative provision for Z’s education.

54. I consider the Council failed to properly consider whether it had a duty, under section 19, to provide Z with a suitable education as they were not attending school. This is because:

• it knew, from Mrs Y and the school’s contact, on 16 and 24 September Z was not attending school. But it did not take any action to consider or investigate Z’s circumstances until its meeting with the school on 17 October 2024;
• it failed to consider and decide whether it should require Z’s attendance at school or provide them with suitable alternative provision: and
• it wrongly told Mrs Y, in response to her request for alternative provision for Z, it was the school’s responsibility to arrange this. The law makes it clear it is the council’s duty, not the school’s, to provide a suitable education for children who for whatever reason cannot attend school.

55. The Council’s failure to properly consider its section 19 duty was fault.

Impact of this fault

56. I have considered what is more likely to have happened had the Council promptly and properly investigated Z’s circumstances and considered its duty to make alternative provision for them.
57. The Council agreed, in December 2024, to arrange a package of alternative provision for Z. In my view, had it properly considered its duty promptly, after being told in September Z was not at school, it is more likely this provision would have agreed sooner, around late October 2024.
58. And as the agreed package was with Provider A, who was already delivering Z’s privately funded provision, this should have been in place by the end of November 2024. But Z did not start receiving the package commissioned by the Council until 3 March 2025.
59. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
60. The Council did not commission any alternative provision for Z from the end of November 2024 to the end of February 2025. The provision package of 10 hours a week increasing to 12.5 hours from 3 March until the start of the summer half term was less than full-time education. And as this was Z’s first secondary school year, it was an important transition period for them. Taking all of this into account I consider the payment should be at the top of the range from December 2024 to February 2025, and towards the lower end of the range from March to May 2025.
61. I also consider the failure to properly consider its section 19 duty caused Mrs Y uncertainty and upset about what was happening with Z’s educational provision.

Service improvements

62. I have not made any recommendation for service improvements by the Council to address the:
1. EP shortage because:

• it already has an action plan in place to mitigate the impact and address the challenges caused by the shortage of EPs. This includes significantly increased spending on EPs; and
• we have as part of previous investigation and recommendations found its action plan to be appropriate to address the challenges the Council is experiencing. I have therefore not made any further service improvement recommendations on this issue.
2. failure to properly consider its section 19 duty because it recently agreed as part of a previous investigation to remind relevant staff:
• about its duty under section 19 of the Education Act 1996 to provide suitable alternative education when a child is out of school; and
• the Council needs to properly consider whether the section 19 duty applies and record this consideration, and that the Council must make this decision, not the school.

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Action

63. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y for: the delay completing the EHC needs assessment; the delay issuing the final EHC Plan; its communication failures; and its failure to properly consider its duty to, and, provide Z with suitable alternative provision. This apology should be in line with our guidance on Making an effective apology:
2. pay Mrs Y, on Z’s behalf, £2,440 (based on 10 school weeks between end of November 2024 to end of February 2025 and 7 school weeks from March to end of May 2025). This is a remedy for Z’s benefit to recognise the injustice the missed education has caused them. Mrs Y may apply an appropriate amount from this payment in re-imbursement of the cost of the educational provision she arranged privately for Z with Provider A from the end of November 2024 to the end of February 2025;
3. pay Mrs Y £500 to reflect the uncertainty and frustration caused by the delay completing the EHC needs assessment because of the EP shortage. This is a symbolic amount based on our guidance on remedies; and
4. pay Mrs Y £500 to reflect the uncertainty and upset caused by its delay issuing the final EHC Plan; failure to properly consider its duty to, and, provide Z with alternative provision; and its communication failures. This is a symbolic amount based on our guidance on remedies
64. The Council should provide us with evidence it has complied with the above actions.

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Decision

65. I find fault causing injustice. The Council has agreed to take the above action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman