Summary: Mr X complained that the Council failed to provide his child with full-time education and failed to issue their Education, Health and Care Plan within the statutory timescales. We find the Council at fault for delays in the Education, Health and Care process, and failing to ensure Y received appropriate alternative provision, causing loss of education and avoidable distress and uncertainty. The Council has agreed to apologise, make a payment to Mr X, and improve its services.

The complaint

1. Mr X complained the Council failed to provide his child, Y with full-time education from September 2023. He also complained the Council failed to complete Y’s Education, Health and Care (EHC) needs assessment or issue an EHC Plan within the statutory timescales, and failed to consider changes he requested to the draft EHC Plan.
2. Mr X says these failures negatively impacted Y’s education, limited his ability to socialise with peers, and impacted his mental health. He also says the situation caused distress to the family.

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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. 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.
5. 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 has done. (Local Government Act 1974, sections 26B and 34D, 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

8. Mr X can appeal to the SEND Tribunal regarding his complaint that the Council failed to consider changes he requested to the EHC Plan. I consider it is reasonable for him to have done so. I have therefore not investigated this part of his complaint.
9. 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. I have investigated Mr X’s complaint about the delays with the EHC needs assessment. 
10. Although Mr X’s complaint relates to events beginning in September 2023, he did not bring the complaint to us until January 2025, slightly outside the 12-month time limit. However, I have exercised discretion to investigate the full period because it was reasonable for Mr X to give the Council time to address his concerns and support Y before escalating the matter. There is also a continuous sequence of events, and investigating only part of the complaint would risk an incomplete understanding of what happened.

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How I considered this complaint

11. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
12. Mr X 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

Relevant law and legislation

Alternative provision

13. 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.
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. 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)
16. 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.
17. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Part-time timetables

18. The DfE 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. A part-time timetable must not be treated as a long-term solution. 
19. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

Education, Health and Care Plan

20. 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. 
21. 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 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).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Appeal rights

22. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment; and
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

23. 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)
24. 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.

What happened

25. In September 2023, before the start of the academic year, the Council attended a meeting with Y’s school and Mr X due to concerns about Y’s escalating behaviour. The Council agreed to observe Y, provide six-weeks one-to-one intervention, support the school staff, and offer parental support to ensure consistent strategies at home.
26. In October, following advice from the Council and with parental consent, the school placed Y on a part-time timetable of 2.5 hours per day. The aim was to support Y’s social, emotional, and mental health needs to focus on his regulation skills. The Council advised that the timetable should be time-limited, regularly reviewed and have a clear end goal.
27. The one-to-one intervention continued and was effective with Council support. However, the school reported it could not meet Y’s needs and considered further reducing his timetable.
28. In November, the school formally requested an EHC needs assessment for Y.
29. Shortly after, Y’s timetable was reduced to 2 hours per day. In response, the Council offered staff support but said it was unable to provide direct intervention at that time.
30. Later that month, the school asked the Council for further guidance about the part-time timetable. While noting Y was making progress, both the school and parents were concerned about increasing his hours too quickly. The Council responded that there is no fixed timeframe for part-time arrangements and recommended a slow, gradual increase based on regular reviews.
31. In December, the Council agreed to carry out an EHC needs assessment.
32. Later that month, the school’s formal notification of Y’s part-time timetable ended.
33. In March 2024, the Council attended a meeting arranged due to Y’s increasing suspensions. It learnt Y remained on the reduced timetable and advised it should be reviewed and increased where possible, potentially supplementing this with additional alternative provision.
34. Later that month, Mr X complained to the Council about delays in the EHC needs assessment. He said Y had recently been suspended for two weeks and was now only attending school for one hour per day to avoid permanent exclusion. Mr X raised concerns that this was limiting Y’s education and social development.
35. In April, the Council attended a meeting with the school to discuss ongoing support and possible alternative provision. The Council suggested a provider (provider 1) which was explored by the school.
36. In May, the Council contacted the school, which confirmed it was seeking funding to place Y at provider 1. The Council also offered support, training, and help with increasing Y’s timetable.
37. Later that month, the Council issued its stage 1 complaint response. It acknowledged delays in the EHC needs assessment, attributing them to a shortage of Educational Psychologists (EPs). It said it would backdate any additional resources, if appropriate, and explained efforts to recruit more EPs. It noted Y’s assessment was scheduled for later that month.
38. In June, dissatisfied with the stage 1 response, Mr X escalated his complaint. He felt the Council had not fully considered all options for an EP assessment and said he was exploring legal action, as Y was attending a school that could not meet his needs.
39. Later that month, the school contacted the Council for more support with Y. The Council delivered four intensive sessions to improve Y’s engagement and regulation and provided staff training.
40. In July, the Council and the school met to review the most recent support provided. The school reported some progress with Y appearing more regulated and happier. The Council recommended increasing Y’s timetable, but the school was unsure whether Y would return the following academic year.
41. Later that month, the Council issued its final complaint response. It reiterated the information in the stage 1 response and declined to escalate the complaint to stage 2, saying further investigation would not add anything new.
42. In September, Mr X wrote to the Council explaining that Y was still only attending school for one hour per day and that the school could no longer meet his needs. He also said the school was unable to fund the proposed alternative provision. He said Y had been without full-time education for a year and asked the Council to arrange alternative provision. Mr X later threatened legal action, alleging the Council had failed to secure educational provision for Y.
43. Later that month, the Council issued a draft EHC Plan.
44. In October, the Council responded to Mr X’s letter. It said it did not have a duty to provide alternative provision, as Y remained on the school roll and the school was responsible for providing full time education. It advised Mr X to work with the school to gradually increase Y’s attendance.
45. Later that month, Mr X responded with comments on the draft EHC Plan. While generally satisfied, he said it omitted key information, a new medical diagnosis, and objected to naming Y’s current school in the Plan, as it could not meet his needs. He asked for more time to submit further comments and visit specialist schools. The school also contacted the Council for support in relation to the draft Plan and further suspensions.
46. In November, the Council issued Y’s final EHC Plan naming Y’s current school.
47. Later that month, the Council replied to Mr X’s legal threat. It maintained that its section 19 duties were not triggered, as it believed the school was meeting Y’s needs. It said the final EHC Plan had been issued and appropriate funding was in place.
48. In January, Mr X brought his complaint to the Ombudsman.

My findings

EHC Plan

49. The Council failed to complete Y’s EHC needs assessment and issue a final EHC Plan within the statutory timescales.
50. The school requested an EHC needs assessment in November 2023, so the final EHC Plan should have been issued by March 2024. However, the Council did not issue the Plan until November 2024, a delay of seven months. This delay is fault. The Council said this was due to a shortage of EPs, but this does not remove its duty to comply with the statutory timescales.
51. The delay meant Y did not receive the special educational provision he might have otherwise been entitled to during this period. While Y was only attending school for one hour per day, the delay also caused avoidable distress and uncertainty for the family and prevented Mr X from exercising his right to appeal the contents of the EHC Plan at an earlier stage.

Education and Alternative Provision

52. Between September and November, the Council was actively involved. It observed Y, provided training to staff, and gave advice to the school. However, after the school's formal notification of Y’s reduced timetable ended in December, the Council stopped monitoring the situation. There was a gap until March 2024, when the school requested support following further suspensions. The failure to keep Y’s situation under review between December and March is fault.
53. In March, the Council was aware that Y was still only attending for one hour per day. At this stage, Y had been on a reduced timetable for six months with no improvement and recent suspensions. This should have prompted stronger intervention. Instead, the Council continued to offer general advice without taking any direct steps to ensure Y received a suitable education. This is fault. Although the Council later provided some practical support in June 2024, Y’s timetable was not increased. The Council failed to challenge the situation effectively. While I cannot say, even on the balance of probabilities, whether Y’s hours could have been increased at any specific time, the lack of effective action has caused uncertainty.
54. The Council’s advice to explore alternative provision to supplement Y’s education shows it accepted that Y’s existing education was not suitable and accessible. At that point, its duty under section 19 was triggered. It is the Council’s responsibility, not the school’s, to arrange suitable, full-time education when a child cannot attend school full-time. The Council failed to do so. This is fault and resulted in a loss of education for Y.
55. The Council did not formally consider its section 19 duty until October 2024. This is fault. The Council’s reasoning, that its duty was not engaged because Y remained on the school roll, was flawed. The correct legal test is whether the child is receiving a suitable education, not whether they are on roll. The Council had sufficient information much earlier to conclude that Y was not receiving suitable education and should have acted sooner. Its failure to do so is fault and led to a continued loss of education.
56. These faults meant that Y missed a significant amount of education over an extended period of time. This not only affected Y’s learning and ability to socialise with peers but also caused significant distress to the family. Where fault results in a loss of education, we typically recommend a symbolic financial remedy to acknowledge the impact of that loss. Based on Y’s individual needs, the academic year, the limited education provided, and the impact on his development, I consider a payment of £1500 per term to be appropriate.

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Action

57. To remedy the injustice caused by the above faults, within four weeks of the date of our final decision, the Council has agreed to: 
• apologise to Mr X in line with our guidance on Making an effective apology;
• pay Mr X £700 to recognise the uncertainty, avoidable distress, and frustration caused by the delay in issuing the final EHC Plan and its failures in monitoring the part-time timetable; and
• pay Mr X £3000, as a remedy for Y’s benefit, to recognise the loss of educational support for approximately two terms.
58. Within three months from the date of our final decision, the Council has agreed to:
• review how the Council monitors part-time timetables and its oversight of children in similar circumstances; and
• using this case as an example, issue updated guidance to staff that clearly sets out that:
1. part-time timetables must not be treated as a long-term solution, and should be reviewed regularly with the aim of increasing the number of hours up to full-time as soon as the child’s health allows;
2. the Council retains responsibility for ensuring children receive suitable full-time education, even where they remain on a school roll; and
3. the legal test for triggering section 19 duties is based on access to suitable education, not roll status.
59. I have not recommended any action for the Council to take to address delays within its SEND team. This is because the Council has assured the Ombudsman of the actions it is taking to improve its services. Specifically, the Council has outlined its plan to address the shortage of Educational Psychologists (EPs), which includes both national and international recruitment efforts. In addition, it has secured contracts with external agencies to deliver EP services, aiming to increase the number of completed assessments and reduce the existing backlog.
60. The Council should provide us with evidence it has complied with the above actions.

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Decision

61. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman