Summary: Ms X complained about delays in the Education, Health and Care (EHC) needs assessment process for her child, Y. Ms X also complained the Council failed to provide Y with a suitable education when they were unable to attend school. We found delays in the EHC needs assessment process, this is fault. As was the failure to provide suitable alternative educational provision. These faults have caused Ms X frustration, distress and uncertainty and have meant that Y has missed out on educational provision. The Council agreed to apologise and make symbolic payment to remedy the injustice.

The complaint

1. Ms X complained about delays in the Education, Health and Care (EHC) needs assessment process for her child, Y.
2. Ms X also complains the Council failed to provide Y with suitable Alternative Provision (AP) when they were unable to attend school.
3. Ms X says the matter has caused her frustration, distress and uncertainty. She also says the faults have caused Y to lose out on education.

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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. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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(i), as amended)

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What I have and have not investigated

9. I have investigated the Council’s actions relating to the Education, Health and Care (EHC) needs assessment process for Ms X’s child Y from February 2024.
10. I have investigated the Council’s actions related to its duties under Section 19 of the Education Act 1996 from February 2024 to January 2025.
11. I have not investigated any matters from 14 January 2025 onwards. Matters after this date would be the subject of a new complaint. Ms X would need to raise this with the Council first before the Ombudsman could investigate.

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How I considered this complaint

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

Education Health and Care 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
16. 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:
17. 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.
18. 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.
19. 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.
20. If the council then 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).

Alternative Provision

21. 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.
22. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
23. 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))
24. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
25. The Government has issued statutory guidance which Councils must follow unless they have good reason. (Ensuring a good education for children who cannot attend school because of health needs, issued by the Department for Education in January 2013)
26. Government guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
27. The Local Government Ombudsman has issued guidance to councils on how we expect them 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)
28. In reaching a decision on whether a child is medically or otherwise unable to attend school, we expect councils to act quickly and (where necessary) consult the relevant professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of their evidence. If – having considered all relevant evidence – a council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.

What happened

Y’s EHC needs assessment

29. On the 29 February 2024 Ms X requested an Education, Health and Care (EHC) needs assessment for her child, Y. A decision to assess should have been made by the 11 April 2024.
30. On the 29 May 2024 the Council refused to assess Y; Ms X appealed this decision. The Council agreed to carry out an EHC needs assessment for Y on the 2 September 2024.
31. I asked the Council about its actions and the delay in the EHC needs assessment process for Y. The Council said Y’s assessment has since taken place and draft EHC plans have been issued in June 2025 allowing for parental feedback. A final plan has not yet been issued. The Council has accepted fault caused by the delays.

Attendance and Alternative Provision

32. After starting secondary school in September 2023, Y struggled to attend due to anxiety. It was agreed between school and Ms X that Y should be placed on a part-time timetable in October 2023.
33. It was agreed that Y would attend only 2 lessons a day, however attendance continued to be a concern.
34. Ms X requested an EHC needs assessment on the 29 February 2024. Within her request Ms X made it clear to the Council:
• Y was on a reduced timetable at school and was not receiving full time education;
• Y’s school were reviewing the reduced timetable every 4 weeks, however Y was only receiving 1 hour of education a day; and
• Y spent the remaining school hours in a regulation room or was sent home.
35. Attendance records for academic year 2023/2024 show Y had very poor attendance. From March 2024, Y’s attendance was very limited and was marked as being educated off site. Further for a three-month period from April to July 2024 no attendance is recorded for Y.
36. The Council was not able to provide the Ombudsman with Y’s attendance data for the academic year 2024/2025.
37. Concerns regarding Y’s attendance were discussed during a way forward meeting in June 2024 after Ms X’s EHC needs assessment refusal. The meeting was attended by the Council. Within this meeting the School’s Educational Needs Co-ordinator (SENCO) said:
• the mainstream offer for Y was difficult, and it would be better if there was alternative provision;
• Y’s education was not progressing; and
• the schools’ resources and actions, including RAG rating and rotating Y’s timetable, had been unsuccessful and made no impact on attendance. They concluded that Y’s access to education was limited.
38. Ms X complained to the Council about the EHC needs assessment delays and said these were impacting Y’s attendance and their academic, social and emotional development.
39. Ms X remains unhappy with the Council’s actions and complaint responses. She asked the Ombudsman to consider her complaint.
40. Ms X said that Y’s attendance remains at 1 hour a day in school and the same adjustment is in place, namely, a RAG rated part-time timetable. She said no alternative provision has been provided.
41. Ms X said the Council had begun enforcement action against her for Y’s attendance, but this had stopped after support from the school’s SENCO.
42. I asked the Council about the actions it took in relation to its Section 19 duties towards Y. The Council said:
• it was aware Y’s educational provision was reduced to support their anxiety;
• it was satisfied that Y’s school was responding to Y’s needs, and its inclusion partner had held 21 meetings to review the educational offer to Y;
• adjustments by the school evidenced increased time in school by Y, however despite these adjustments it was aware these had not led to sustained attendance or reduced anxiety for Y; and
• delays in the EHC needs assessment process may have caused additional worry and concern for Y and Ms X. It offered a remedy of £500 in acknowledgement of this.

Analysis

EHC Needs Assessment Process

43. I considered Ms X’s complaint from February 2024 until January 2025. From the point of Ms X’s original EHC needs assessment request until the date of the Council’s complaint response to Ms X.
44. The evidence shows the Council failed to share its initial decision to refuse Y’s EHC needs assessment within the statutory timescales. It took the Council six weeks longer than it should have to do so. This was fault, which caused a delay to Ms X’s appeal rights.
45. After Ms X’s appeal and the Council’s agreement to assess Y on the 2 September 2024, the whole process should have been completed within 20 weeks of its agreement to assess. The Council should have issued a final plan by 20 January 2025, it did not.
46. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes is fault. The Council has accepted it has taken longer than it should to complete the process due to a shortage of Educational Psychologists. This is service failure.
47. Having identified fault, I must consider whether this has caused Ms X and Y an injustice. The delay in making a decision to assess and subsequently completing the EHC Needs assessment process has caused Ms X frustration and uncertainty. It is also delaying her right of appeal to the SEND tribunal. I found the Council should make a symbolic payment to recognise the frustration and distress Ms X has experienced.
48. We can also make recommendations to ensure similar faults do not happen in the future. We have investigated other similar complaints recently related to the EHC needs assessment process and made recommendations. The Council produced an ‘action plan’ to address our concerns and has recently changed its procedures. I will not, therefore, make further recommendations relating to this matter.

Alternative Provision

49. Y was placed on a part-time timetable in October 2023 through agreement with the school and Ms X. The Council said it only became aware Y was on a part-time timetable when Ms X made her EHC needs assessment request in February 2024.
50. The law states councils must intervene and provide education under their Section 19 duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness, or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively. In Y’s case the evidence shows,
• between February 2024 and July 2024, Y missed more than 15 days of education either consecutively or cumulatively,
• the school advised the Council in June 2024 that Y was making no progress, a part-time table was no longer working and Y needed alternative provision;
• no assessment or review of Y’s individual needs and part-time timetable was conducted nor whether the Council considered its duty to arrange alternative education for Y. Instead, the Council continued to rely on the school. This is fault. While, a Council can delegate its Section 19 role to be provided by a school, it remains the Council’s responsibility;
• while the Council was unable to provide the Ombudsman with attendance data after July 2024. A school led part-time timetable remained the only adjustment made for Y up to January 2025. This is despite its own policy being clear that part-time timetables must not be treated as long-term solutions and schools should provide it with half termly attendance data for children on reduced timetables.
51. I consider the Council failed to robustly keep Y’s access to education and its section 19 duties under review. Y only received limited education from February 2024 using a school led part-time timetable. This caused injustice to Y with a lack of suitable full-time education and social opportunities for two and a half school terms.
52. 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.

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Action

53. To remedy the injustice the Council caused to Ms X due to delays in the EHC needs assessment process, the Council has agreed to:

Pay Ms X £100 per month of delay in the statutory process, to be calculated as below:

• £150 for the 6-week period of delay in deciding to assess Y; and
• from 20 January 2025 (20 weeks after agreement to assess) until the date the Council issues Ms X with Y’s final EHC Plan.
1. To remedy the personal injustice caused to Ms X and Y, due to failing to meet its alternative provision duty (Section 19), the Council has agreed to carry out the following actions within one month of the final decision:
• Make a payment of £5,000 to Ms X, to use as she sees fit for Y’s educational benefit, to recognise the impact of a lack of a suitable full-time education and the Council’s failure to consider its Section 19 duties for two and a half terms (February 2024 to January 2025).
• Pay a symbolic payment to Ms X of £250 for the distress, uncertainty, time and trouble caused to her.

In total the Council has agreed to pay Ms X £5,400 plus the additional monthly payment of £100 from the 20 January 2025 until a final EHC Plan is issued for Y.

55. The Council has agreed to apologise in writing to Ms X and Y to acknowledge the injustice caused by the faults identified;

We publish guidance on remedies which sets out our expectations for how organisation should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

56. Within one month of the new academic year (2025/2026), the Council has agreed to consider its Section 19 duties to Y, clearly document any decisions and promptly communicate these with Ms X.
57. The Council will provide us with evidence it has complied with the above actions.

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Decision

58. I find fault causing injustice. The Council has agreed to the recommendations to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman