Summary: The Council was at fault as it delayed completing an Education, Health and Care needs assessment for Miss X’s child Y. It was also at fault as it did not properly consider its alternative provision duty when Y was not in school and it poorly communicated and handled Miss X’s complaint. The Council will apologise and make a symbolic payment to Miss X to recognise the avoidable frustration and uncertainty caused by its faults. It will also report back to us on the steps it will take to avoid similar issues from happening again.

The complaint

1. Miss X complained the Council:
1. did not complete her child Y’s Education, Health and Care (EHC) needs assessment and issue an EHC Plan within statutory timescales;
2. provided an EHC Plan that included provision not suitable for Y’s needs;
3. did not provide a full-time education for Y between April 2024 to December 2024 when they were unable attend school;
4. failed to provide an appropriate alternative provision in time when Y was permanently excluded from their school in May 2025; and,
5. was poor in its communication and complaint handling.
2. Miss X said as a result, Y’s wellbeing and education suffered and Miss X’s finances and wellbeing were impacted as well.

Back to top

The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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)
8. 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)
9. 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.
10. 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)
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

12. I have not investigated Miss X’s complaint at 1b) above. This is because Miss X had a right of appeal to the Tribunal about the content of Y’s EHC Plan including the special educational provision in their Plan, and it was reasonable for her to have used this right. The Tribunal is the appropriate place to raise such matters.
13. I have also not investigated Miss X’s complaint at 1d) because the Council has not had the opportunity to consider this complaint yet. It is reasonable to expect Miss X to complain about this matter to the Council first to allow it an opportunity to investigate and reply. If Miss X remains unhappy it is open to her to complain to us again.

Back to top

How I considered this complaint

14. I spoke to Miss X about her complaint.
15. I considered evidence provided by the Council in response to my enquiries as well as the relevant law, policy and guidance.
16. Miss X and the Council had an opportunity to comment on the draft decision. I considered any comments before making a final decision.

Back to top

What I found

Relevant law and guidance

Education, Health and Care needs assessment

17. 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: 

• 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).  

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

Alternative education provision

19. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
20. 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)
21. 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
22. We made six recommendations. 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.

23. Where councils arrange for schools or other bodies to carry out its functions on its behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure its duties are properly fulfilled.

What happened

24. This section sets out the key events in this case and is not intended to be a detailed chronology.
25. Miss X’s child Y is of primary school age and has special educational needs (SEN).
26. On 30 April 2024 Y’s school asked the Council to assess Y for an EHC Plan. Y’s EHC needs assessment request said that Y was not in school - they only attended morning sessions at a local social, emotional and mental health (SEMH) provision. It also noted that Y’s school and the SEMH provision held weekly reviews to assess the next steps.
27. On 6 June 2024 the Council agreed to undertake an EHC needs assessment.
28. On 30 September 2024 Miss X complained to the Council. She said that the Council had not completed Y’s needs assessment within statutory timescales and that it had not responded to her requests for an update. She complained that Y was on a reduced timetable and was not getting the full-time education they were entitled to.
29. On 8 October 2024 the Council issued a stage one response to Miss X’s complaint. In this, the Council:

• apologised for not completing Y’s needs assessment within statutory timescale.
• explained it had experienced significant challenges regarding staffing levels and capacity, but it had made changes to its ways of working – it now had dedicated officers to deal with specific areas of the statutory process such as the EHC needs assessments.
• reassured Miss X that it would progress Y’s case as quickly as possible.

30. On 17 December 2024 the Council received advice from an Educational Psychologist.
31. In late January 2025 Miss X complained to the Council again. She said there had been no update on Y’s needs assessment since the October 2024 complaint response and that the Council had failed to respond to further communication from her.
32. Miss X also complained to us at the same time. We asked the Council if Miss X’s complaint had completed its complaints process. The Council said it had not and that it would issue a stage two complaint response by 24 February 2025.
33. On 26 February 2025 Miss X contacted us to say she had not received the Council’s stage two response.
34. On 5 March 2025 the Council issued Y’s draft EHC Plan.
35. On 3 April 2025 the Council provided a stage two response to Miss X’s complaint. It apologised for its delayed response, told Miss X Y’s draft Plan had been issued and that it was dealing with Y’s case as quickly as possible.
36. On 15 April 2025 the Council issued Y’s final EHC Plan.

Council’s response to our enquiries

37. The Council accepted that it had delayed issuing Y’s final EHC Plan. It explained this was due to various reasons such as capacity constraints, increased demands for its service, staff absences and changes in key officers due to team reorganisation. The Council said it allocated an interim EHC Plan writer in March 2025 to draft Y’s EHC Plan. It also told us that its backlog of needs assessments had significantly reduced since December 2024.
38. On the suitability of Y’s part time attendance at an SEMH provision, the Council said it was Y’s school’s responsibility to ‘provide appropriate support and reasonable adjustments’ whilst their needs assessment took place. It added that it was also the school’s responsibility to determine if Y’s provision was appropriate since they were ‘still under assessment’.

Findings

Education, Health and Care needs assessment

39. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
40. Councils must issue a final EHC Plan within 20 weeks of an EHC needs assessment request. For the needs assessment process to be completed within 20 weeks, councils should produce a draft EHC Plan by week 14 and within six to eight weeks of receiving the Educational Psychologist advice.
41. An EHC needs assessment for Y was requested on 30 April 2024 and the Council agreed to undertake the assessment soon after. It decided to issue an EHC Plan.
42. The Council should have finalised Y’s EHC Plan within 20 weeks and by 17 September 2024. However, evidence showed that the Council received advice from an Educational Psychologist on 17 December 2024. The Council should have produced Y’s draft EHC Plan within six to eight weeks of the Educational Psychologist advice and by 11 February 2025. It did not issue Y’s draft Plan until 5 March 2025. The Council finalised Y’s EHC Plan on 16 April 2025, 30 weeks after the statutory deadline. This delay was fault and caused Miss X avoidable frustration and uncertainty.
43. The Council told us that the delay in completing Y’s needs assessment and issuing their EHC Plan was due to capacity constraints, staff absences and increased demands for its service. In response to staff absences, the Council said it allocated an interim EHC Plan writer to draft Y’s EHC Plan.
44. Evidence also showed that it took over seven months to receive advice from an Educational Psychologist which was needed to enable the Council to progress Y’s needs assessment. This contributed significantly to the overall delay in completing Y’s needs assessment process and was fault. This initial delay may have been out of the Council’s control, however the Ombudsman can find fault with the Council where there is a failure to provide a service, regardless of the reasons for that service failure.

Alternative education provision

45. Records showed that in April 2024 when a request for Y’s EHC needs assessment was made, the Council was told that Y attended a local SEMH provision in the mornings only. Miss X also complained to the Council about Y’s part time attendance in September and again in October 2024.
46. As per section 19 of the Education Act 1996, it was the Council’s responsibility to consider whether it owed Y a section 19 duty when it was made aware that they were not in education full time. If the Council decided it owed Y this duty then it should have considered whether a part-time education was appropriate for Y’s needs at the time. It should have kept oversight of Y’s part time attendance at the SEMH provision to ensure its duties were properly fulfilled.
47. The Council provided no evidence to show it did so. Instead, it told us it was the school’s responsibility to provide and consider the appropriateness of any provision while Y’s needs assessment was underway. The Council’s failure to consider its section 19 duty when it became aware that Y was not in education full time and its failure to retain oversight of Y’s part time attendance at a provision arranged by their school was fault. As a result, the Council missed an opportunity to assess if Y needed more provision or support. I cannot say, even on the balance of probabilities, what provision Y would have had if the Council had considered its section 19 duty properly at the time.

Communication and complaint handling

48. The Council’s communication with Miss X was poor. Miss X contacted the Council for an update on Y’s EHC needs assessment on various occasions and the Council has provided no evidence to show it responded to her in a timely manner. This was fault and caused Miss X avoidable frustration.
49. The Council also took six months to complete its investigation into Miss X’s complaint when its published policy states timescales of 10 and 20 working days for a stage one and two complaint response respectively. Its complaint responses were also inadequate – it did not signpost Miss X to the next stage of the complaints process or to us and it did not consider remedying any injustice caused by the fault it identified. This was fault which added to Miss X’s frustration.
50. We recently made service improvement recommendations to the Council on similar matters in a separate investigation in December 2024. Therefore, I have not considered it necessary to repeat these on this part of Miss X’s complaint.

Back to top

Agreed action

51. Within one month of the final decision the Council will:
1. Apologise to Miss X for the injustice caused by its faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
2. Pay Miss X £500 to recognise the avoidable frustration and uncertainty caused by the delay in issuing Y’s Education, Health and Care Plan.
3. Pay Miss X £500 to recognise the uncertainty caused by its failure to properly consider its section 19 alternative provision duty and its lack of oversight of Y’s part time education between April and December 2024.
52. Within three months of the final decision the Council will:
1. Identify areas of staff shortages (including Educational Psychologists and other key officers), produce and provide us with an action plan outlining steps it has taken or intends to take to address these shortages.
2. Remind relevant officers, either through training or a briefing note, of the Council’s duties to consider its section 19 duty as soon as it is aware that a child is not attending school full-time. The Council will also provide relevant officers with a copy of our guidance Out of school, out of sight? published July 2022.
53. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

54. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations and service improvements.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman