Summary: The Council failed to issue D’s Education, Health and Care Plan within statutory timescales and delayed putting alternative provision in place after D stopped attending school. To remedy the injustice caused by this fault, the Council has agreed to carry out the actions set out at the end of this statement.

The complaint

1. Ms Y complains about delays in the processing of her child’s Education, Health and Care (EHC) plan and the Council’s failure to deliver suitable provision once they stopped attending school in April 2024.

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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 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)
3. 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)
4. 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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Ms Y and the Council as well as relevant law, policy and guidance.
6. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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 found

What should happen

EHC plans

8. 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)

9. There is a right of appeal to the tribunal against a council’s 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.
10. 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)
11. 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.
12. 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.
13. 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; and
• 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.  

Alternative provision

14. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a compulsory school-aged 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.

What happened

15. In September 2023 D started in the reception year of a mainstream primary school. At this point, D did not have an EHC plan but was on the pathway for an Autism diagnosis due to significant challenges in their development.
16. Ms Y says that, once D started school, their hours were immediately limited to just two hours a day because the school could not meet D’s needs.
17. In April 2024 the school submitted an EHC needs assessment referral to the Council as it thought D may benefit from an EHC plan.
18. When the situation at school did not improve, Ms Y decided in April 2024 to remove D from school. At this time, D was not yet compulsory school age.
19. On 13 May 2024 Ms Y notified the Council of her intention to electively home educate (EHE) D.
20. The Council’s EHE team visited Ms Y on 13 June 2024 to complete an EHE initial assessment. Following this, the Council decided the home education provided by Ms Y was unsuitable. The EHE team made a referral to the Council’s school admissions team to explore the possibility of another school place.
21. The admissions team contacted Ms Y and D’s previous school to gather information. Ms Y also submitted an in-year application which included two mainstream school preferences.
22. On 2 July 2024 the Council wrote to Ms Y to confirm its decision to consider D’s case under its ‘Fair Access Protocol’ (FAP) which is designed to help place vulnerable children back into school without delay. The Council told Ms Y that D’s case would be discussed at the next FAP meeting on 23 September 2024. The Council says it made efforts to contact Ms Y by telephone to discuss the application in early July 2024, but those efforts were not successful.
23. In an email to the Council in July, Ms Y said: “I do worry how a full school day would impact [D], especially since [D] has only ever been at school for two hours per day… I wouldn’t want to push [D] into a full school day straight away as that would totally overwhelm [D]”.
24. Around this time, the Council completed its EHC assessment and decided that D needed an EHC plan. The Council issued the first draft of an EHC plan on 5 September 2024. The Council also withdrew the standard school admissions application with the FAP team as D’s placement would now be determined under the EHC process.
25. Dissatisfied with a lack of action, Ms Y complained to the Council on 10 December 2024.
26. Two days later, the Council issued D’s final EHC plan naming a mainstream school. Ms Y lodged an appeal with the SEND tribunal regarding the named provision.
27. On 16 December 2024 the Council contacted Ms Y to discuss the possibility of interim tuition for D to begin in the new year.
28. Ms Y contacted the Council in January to chase the provision of tuition for D. The Council said on 16 January 2025 that it would follow this up.
29. Tuition started from 3 February 2025 for five hours per week. This was in line with Ms Y’s preference due to the limited hours that D had been able to access at school. The Council said it would keep the arrangement under review with a view to increasing the hours gradually depending on D’s ability to engage.
30. The Council responded to Ms Y’s complaint on 12 February 2025. In summary, it said:
• The Council involved the FAP team before deciding that D needed an EHC plan. Because of this, D did not receive an offer of a school place through the admissions and FAP process.
• In line with Ms Y’s request, the Council agreed part-time interim tuition which can continue for the period during which D remains out of school.
• In response to Ms Y’s comments about a personal budget (PB), the Council has no record of receiving a request. The Council invited Ms Y to provide further information to support her request for a PB.
31. After further consideration, the Council decided to amend D’s EHC plan. On 14 February 2025 the Council issued an amended EHC plan naming a specialist school to begin from September 2025. This was in line with Ms Y’s request for a delayed start date.
32. On 16 June 2025 Ms Y decided to withdraw D from the tutoring services. D received their final session of tuition on 22 June 2025.
33. In October 2025 Ms Y withdrew her tribunal appeal because she agreed with the contents of the February 2025 EHC plan.

Was there fault causing injustice in the actions of the Council?

34. When D stopped attending school in April 2024, they were not of compulsory school age. D turned five in June 2024 and therefore became of compulsory school age from September 2024, the term following their fifth birthday. As a result, the Council’s duties under Section 19 of the Education Act 1996 did not initially apply. However, as D approached compulsory school age, there was an expectation for the Council to keep D’s case under review.
35. Following the decision to remove D from school, Ms Y elected to home educate. The Council appropriately monitored this arrangement and, when it found home education to be unsuitable in June 2024, took steps to try and secure a school place through the Fair Access process while continuing an EHC needs assessment.
36. The Council issued D’s final EHC plan 33 weeks after receiving the request for an assessment. This exceeded the statutory 20‑week timescale for completing the assessment and issuing a final plan. This delay caused injustice in the form of avoidable frustration and uncertainty for Ms Y and delayed her ability to appeal to the SEND tribunal. The Council will apologise for this.
37. In line with statutory timescales, the Council should have issued D’s final EHC plan by September 2024. This was also when D became of compulsory school page. At that point, D remained without a suitable education and the Council needed to consider its duty under Section 19 of the Education Act 1996. The evidence also shows Ms Y asked the Council to consider a personal budget to fund tutoring during this period, which further demonstrates she was seeking ways to secure education for D. Interim tuition did not begin until 3 February 2025. As a result, D did not receive any education for the duration of the autumn 2024 term. This fault caused injustice to D which the Council will provide a symbolic payment for.
38. When the Council issued D’s final EHC plan in December 2024, Ms Y had a right of appeal to the SEND tribunal about the educational placement named in the plan. Ms Y used that right. The Ombudsman cannot investigate matters that are inextricably linked to an appeal right. For this reason, I have not recommended a remedy for the period between December 2024 and February 2025, as D’s continued absence from education during this time cannot be separated from the decision which she appealed against.

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Action

39. Within four weeks of our final decision, the Council has agreed to:
• Apologise to Ms Y for the fault identified in this statement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
• Make a symbolic payment of £1200 in recognition of the one school term of missed provision caused by fault. This is in line with the LGSCO’s Remedies Guidance and takes into account that D had special educational needs but was only able to manage a part-time offer of education at that time.
40. Within twelve weeks of our final decision, the Council will also:
• Provide evidence to show it has reviewed its existing processes for identifying children approaching compulsory school age who are not receiving education, to ensure officers promptly consider section 19 duties when those children reach compulsory school age.
• Brief relevant SEND officers to remind them that delays in EHC plan processes or placement searches do not remove the requirement to promptly consider interim education where appropriate, and ensure such considerations are properly recorded.
41. The Council will provide us with evidence it has complied with the above actions.

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Decision

42. I find fault causing injustice. The Council will complete the actions listed in the section above to remedy the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman