Summary: Mrs X complained the Council failed to complete an Education, Health and Care needs assessment for her child, Y, within the statutory time limits. She said this caused Y to miss out on a suitable education. We found the Council at fault for not completing the assessment within the statutory timescales and for not providing a suitable education for Y. This fault caused injustice to Mrs X and Y. The Council has agreed to make a payment to recognise Y’s loss of education and the distress to them and Mrs X. The Council has also agreed to make changes to improve its service.

The complaint

1. Mrs X complained about delays by the Council during the Education, Health and Care (EHC) needs assessment process for her child, Y. She complained Y did not receive a full-time education during this time.
2. Mrs X said the Council’s actions have caused stress and uncertainty to Y and they have missed learning during an important time in their education.

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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. 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)
5. 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)
6. 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)
7. 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.
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)
9. 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

10. I have investigated how the Council considered its duty to arrange alternative education provision for Y from January 2024 until Mrs X complained to us in January 2025. I have also investigated the Council’s actions in relation to Mrs X’s request for an EHC needs assessment in September 2024 until the Council issued a final EHC Plan in June 2025.
11. I have not investigated the Council’s actions before January 2024. Mrs X knew about earlier issues at the time and therefore her complaint about these is late. We can only investigate late complaints if we decide there are good reasons. I do not consider there are any good reasons Mrs X could not have complained about events before January 2024 within 12 months of knowing about them and there are no good reasons to investigate those events now.
12. Although I have not investigated the Council’s actions after January 2025, I have considered if any fault before January 2025 caused ongoing injustice to Mrs X and Y.

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How I considered this complaint

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

EHC needs assessments and plans

15. A child or young person with Special Educational Needs (SEN) 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.
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 SEND 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 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).

17. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

Alternative education provision

18. 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.
19. 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)
20. 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
21. 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.

22. 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.

Impartial information, advice and support

23. The Code states councils must make sure children and young people with SEN and disabilities and their parents or carers can access information and advice about SEN and disabilities. The information, advice and support should be provided through a dedicated and easily identifiable service.
24. When designing information and advice services, councils should have regard to the principle that the information, advice and support is free, accurate, confidential and in formats which are accessible and responsive to the needs of users.

What happened

25. Y attended school part-time from October 2023. They then stopped attending school completely between May 2024 and July 2024 but continued attending school part-time again in September 2024. Y was studying their final year of the General Certificate of Secondary Education exams (GCSEs) in the academic year 2024/25.
26. Y’s school offered support and alternative education provision to Y when they were on a part-time timetable, such as counselling and lessons in an on-site unit separate to the main school building.
27. Documents sent in response to our enquiries show the school contacted a staff member from the Council’s Early Help team in June 2024 to seek advice about helping Y increase their attendance.
28. In summer 2024 Mrs X asked the Council to carry out an EHC needs assessment for Y. She sent her completed form to the address given to her by an independent advice service which is commissioned by the Council for parents and carers (SENDIASS). When Mrs X received no response from the Council, she chased this and was told she had sent the request to the wrong address.
29. In September 2024 Mrs X sent a new assessment request to the Council. On the form she explained Y was not attending school full-time.
30. In response to our enquiries, the Council told us it considered its duty to arrange alternative education provision at this point, because Mrs X had written on her form that Y was not attending school full-time. It said it decided it did not need to arrange alternative education provision because it was satisfied school was providing suitable provision for Y.
31. In November 2024 the Council told Mrs X it would complete an EHC needs assessment for Y, but it had not yet assigned Y’s case to an EP. It said it would let Mrs X know once it had done this.
32. In January 2025 Mrs X complained to the Council about delays to the EHC needs assessment. She said Y was still struggling to attend school.
33. The Council replied and told Mrs X it was still waiting for an EP to be available before it could complete Y’s assessment. It explained there was a shortage of EPs across the country and it outlined the steps it has taken to minimise wait times, such as recruiting more EPs.
34. Mrs X then complained to us in January 2025. She said the Council still had not finished the EHC needs assessment and had not contacted anyone at Y’s school to contribute advice to the assessment.
35. In February 2025 Mrs X emailed the Council and told them Y was now no longer attending school. She explained that the unit Y was attending had been closed and Y was expected to attend lessons in the school’s main building, but they felt they could not do this.
36. In March 2025 the EP was assigned to Y’s case.
37. The Council started funding at-home tuition for Y in late March 2025.
38. The Council then issued a final EHC Plan for Y in June 2025.

Analysis

EHC Plan delays

39. The Council sent Y’s final EHC Plan in June 2025 when it should have sent it in February 2025. This was a delay of four months.
40. In the Council’s complaint response to Mrs X, it explained to her it was having issues completing EHC needs assessments on time due to the demands on its EP services.
41. There is a reported national shortage of EPs. In response to our enquiries on a previous case, the Council shared with us its plan to reduce delays in EHC needs assessments caused by the EP shortages. We are satisfied the Council is taking steps to reduce delays.
42. Despite the Council having a plan to reduce the delays, we will still find fault when a council cannot meet statutory timescales because of circumstances beyond its control. As explained in paragraph six of this decision, we consider this to be service failure.
43. In response to our enquiries, the Council told us it waits until an EP is allocated before asking other relevant professionals to contribute advice to the EHC needs assessment. It says it does this to make sure the advice is relevant.
44. I have seen evidence the Council did ask the school to contribute advice to the EHC needs assessment. Therefore, I do not find any fault by the Council on this point.
45. The delay in Y’s EHC Plan caused avoidable uncertainty and stress for Y and their family. As Y was studying their final year of GCSEs, this would have increased their distress because it was a crucial point in their education. They needed support to prepare for their GCSEs but also both Y and Mrs X were anxious to know the arrangements needed for Y’s further education.

Alternative provision

46. In response to our enquiries, the Council told us it was not aware that Y was only attending school part-time until October 2024 when it read Mrs X’s request for an EHC needs assessment.
47. However, I am satisfied the Council became aware of Y’s attendance issues in June 2024 when the school contacted the Council’s Early Help team for advice. It is irrelevant which team knew about Y’s difficulties with school attendance as there should be internal communication between the Council’s teams. It was fault for the Council not to consider whether it had a duty to arrange alternative education provision at this point.
48. The Council told us it considered its duty in October 2024 and decided it did not have a duty to arrange alternative education because the education provided by school was suitable for Y.
49. However, as outlined in our guidance Out of school, out of sight? published July 2022, we expect councils to keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases. I have not seen evidence the Council reviewed Y’s alternative education provision before January 2025 (when my investigation ends). This is fault.
50. As explained in paragraph five, if we find fault in a council’s actions, we must also consider whether any fault has caused a personal injustice.
51. On the evidence I have seen, I am satisfied that the Council would not have decided to arrange any further alternative education provision for Y between June 2024 and January 2025. This is because the evidence shows Y and their family were satisfied with the arrangements school had made, and Y did not want to engage with any further therapeutic support at that time.
52. However, Y’s provision broke down in February 2025 and Y stopped attending school at this point. If the Council had been reviewing Y’s alternative education provision, as it should have been, it is likely it would have decided to arrange alternative education provision from February 2025.
53. At the end of March 2025, the Council started funding tuition for Y.
54. Therefore, Y likely missed out on alternative education provision between February 2025 and the end of March 2025 because of the Council’s failure to keep Y’s education arrangements under review.
55. This loss of education was during Y’s GCSE year, which is a crucial stage of education and therefore the impact of this would have been more significant.

Incorrect address provided by the advice service

56. Councils have a duty to provide parents, children and young people with impartial information, advice and support in relation to SEN to enable them to take part effectively in the assessment and planning process. SENDIASS provides this service on behalf of the Council. The Council remains responsible for the effectiveness of the service.
57. In response to our enquiries, the Council told us it was aware the advice service was using a form which has an incorrect address for requesting EHC needs assessments. It said it had requested the service to correct this urgently.
58. The wrong information received on the SENDIASS template meant Mrs X sent her request for an EHC needs assessment to the wrong address and had to resend it a few weeks later, once she realised the SEND team of the Council did not get it. This caused her distress and meant a further delay of six weeks.

Service improvements

59. In our recent decisions we have recommended for the Council to:

• draw up an action plan, with timescales, to address any ongoing delays in dealing with and issuing EHC Plans. This is to ensure the Council meets the statutory timescales for issuing EHC Plans.
• introduce a system of regular updates for parents and young people waiting for EHC needs assessments.
• review its out of school procedures to ensure it meets its duties to secure alternative provision.
• ensure relevant officers are aware of the Council’s arrangements for commissioning alternative provision.

60. We recognise it will take some time for the Council to address its failings within completing EHC needs assessments within statutory timescales and meeting its Section 19 duty identified in our recent investigations. We will be monitoring the effectiveness of the Council’s actions following our recommendations through our casework.

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Action

61. Within one month of our final decision, the Council will:

• apologise to Mrs X and Y for the injustice caused to them by the failings identified during this investigation. This apology should be in accordance with our guidance for making an effective apology.
• pay Mrs X £800 to acknowledge the loss of education for Y between February 2025 and the end of March 2025.
• pay Mrs X £600 to acknowledge the avoidable distress to her and Y caused by the Council’s delays to the final EHC Plan.

62. Within three months of our final decision, the Council will:

• issue a staff briefing to all front line staff who may come into contact with schools or parents to make them aware of the Council’s Section 19 responsibilities and understand they must make the relevant Council teams aware if a child of compulsory school age is not attending school full-time.
• review templates used by its SEND information, advice and support services to ensure they are accurate and introduce a regular process of checking the accuracy of information provided by this service.

63. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman