Summary: Mrs X complained the Council failed to provide her child, Y, with suitable education for over two years and delayed the Education, Health and Care (EHC) needs assessment process. Mrs X said she waited seven months for mediation when it should have taken 30 days. She also complained the Council delayed dealing with her complaint. Mrs X said this distressed her and Y missed education. There was fault in the way the Council delayed mediation, did not ensure Y received education and potential plan provision and its complaint handling was poor. This frustrated Mrs X and Y missed education and potential EHC Plan provision. The Council agreed to apologise and make a financial payment.

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with suitable education for over two years and delayed the Education, Health and Care (EHC) needs assessment process. Mrs X said she waited seven months for mediation when it should have taken 30 days. She also complained the Council delayed dealing with her complaint. Mrs X said this distressed her and Y missed education.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

5. I have investigated Mrs X’s complaint about the Council’s actions.
6. I have not investigated any reference to the school’s actions because the Ombudsman does not have jurisdiction over schools.

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How I considered this complaint

7. I read Mrs X’s complaint and spoke to her about it on the phone.
8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

10. 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. 
11. 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);  

12. 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)  
13. A child’s parents or the young person do not have to consider mediation if their disagreement only relates to the placement named in section I or that no placement is named in section I.
14. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• 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; and
• amendment to these elements of an EHC Plan.

15. 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)
16. 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.
17. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
18. 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.
19. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation. The Council has 30 days to complete the mediation process.
20. 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.
21. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, 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.
22. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
23. 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.
24. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
25. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
26. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.
27. 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. 

What happened

28. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
29. Y was on roll at school B. Mrs X engaged with school B about Y struggling to attend. School B noted Y was struggling to attend and implemented part time timetables to support Y back to school. Mrs X applied for an EHC Plan in early 2024. The Council declined the request in February 2024.
30. Mrs X applied for an EHC Plan again in June 2024. The Council declined the request in July 2024.
31. Mrs X asked the Council for mediation in August 2024.
32. Mrs X continued to engage with school B about Y not being able to attend.
33. Mrs X approached the Council in November 2024. She spoke about the refusal to complete the EHC needs assessment but also mentioned attendance issues. She said Y was on a part time timetable, but later said he had not received education for a year. The Council confirmed it would act on the mediation request and told Mrs X to contact another Council service about education.
34. Mrs X complained to the Council in January 2025. She raised concerns about the support from school B. She said Y missed education and the Council had not completed mediation. The Council did not accept the complaint, signposting Mrs X to school B.
35. The Council completed mediation at the end of January 2025.
36. The Council agreed to complete an EHC needs assessment in March 2025.
37. Mrs X continued to engage with school B about Y’s education.
38. The Council issued a draft EHC Plan at the start of July 2025.
39. Mrs X chased the Council about her complaint in July 2025. She said she complained in January 2025 with no response. Mrs X stated the EHC Plan was delayed and Y missed education.
40. Mrs X formally asked the Council for alternative provision a week later.
41. The Council issued the final EHC Plan a week later. The plan named school B.
42. The Council responded to Mrs X’s complaint at the end of July 2025. The response accepted the delays in mediation and issuing the EHC Plan. The Council apologised.
43. Mrs X asked the Council to escalate her complaint to stage two in August 2025. She said the response did not answer her complaint.
44. The Council issued its stage two complaint response in September 2025. The Council said school B followed its advice and offered to support Y back to school. The Council repeated its apology for the delays in the mediation process.
45. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to ensure Y receives education.
46. In response to my enquiries the Council accepted it delayed the mediation, which delayed issuing the EHC Plan. It offered a remedy for the frustration caused by the delay and for the missed provision because of the delay.

My findings

Mediation and EHC Plan

47. Paragraph 19 sets out the timescale the Council has to complete the mediation process, 30 days. Mrs X asked the Council for mediation in August 2024. It should have completed mediation by September 2024. The Council completed the mediation at the end of January 2025, a five-month delay. This delay is fault, frustrating Mrs X.
48. After the mediation, the Council agreed to complete an EHC needs assessment in March 2025. It should have issued the final EHC Plan by June 2025. The Council issued the EHC Plan at the end of July 2025, a further six week delay.
49. In response to my enquiries, the Council accepted this delay was fault and offered a £500 payment to remedy the frustration this delay caused. This is a suitable offer for the injustice caused and is in line with our guidance on remedies.

Missed education

50. Councils 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”.
51. The Courts have said it is for a council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.
52. The Council knew Y was not attending school in November 2024. I have seen communications with the school before this date, and the EHC Plan application mentions low attendance. However, I have seen no evidence Mrs X asked the Council about missed education until November 2024. Paragraph 21 says the Council should have assessed if school B's education offer was suitable for Y when it found out he was not attending school. I have seen no assessment to determine this. This is fault.
53. Mrs X said Y missed education. If the Council had completed an assessment and decided it needed to arrange education, it would have had to provide this from 15 days after Mrs X approached it, from December 2024. Without any assessment, and any evidence of education provided, I cannot say the education offer was suitable and cannot say the Council ensured Y received suitable education. The Council’s failure to ensure Y received education provision from December 2024 is fault. Y has missed education since December 2024.
54. The Council issued a final EHC Plan in July 2025. This plan gave Mrs X an appeal right to the Tribunal. If Mrs X disagreed with the placement in the EHC Plan, it was reasonable for her to appeal this. Once an appeal right is engaged, we cannot consider matters which can be dealt with by an appeal to the Tribunal. We can only therefore recommend a remedy for missed education until the Council issued the final EHC Plan in July 2025. I cannot recommend any remedy for missed education beyond this date.
55. In response to my enquiries, the Council stated the delay in mediation delayed issuing the EHC Plan. It said this meant it could have issued the EHC Plan in January 2025. The Council said this meant Y potentially missed EHC Plan provision of two academic terms. The Council offered to remedy two terms of missed EHC Plan provision, totalling £1,800. Y also missed two academic terms of education. The Council offer of £1,800 is in line with our guidance on remedies and is a suitable offer to remedy the missed education and potential EHC Plan provision for two academic terms.

Complaint handling

56. The Council did not accept Mrs X’s complaint in January 2025, directing her to school B. The Council was entitled to signpost Mrs X to school B for some of the complaint. However, the complaint about delayed mediation and Council inaction was for the Council to consider. The Council later considered these points, but it did not fully consider Mrs X’s January 2025 complaint. This is fault, frustrating Mrs X.

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Action

57. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for not fully considering her complaint, delayed mediation and not ensuring Y received education and potential EHC Plan provision for two academic terms. 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.
• Pay Mrs X the £500 it offered to recognise the distress, frustration and uncertainty caused by the delayed mediation and in issuing Y’s EHC Plan.
• Pay Mrs X the £1,800 it offered for missed education and potential EHC Plan provision for two academic terms. This money should be used for Y’s benefit.
58. The Council should provide us with evidence it has complied with the above actions.

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Decision

59. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman