Summary: Mrs X complained the Council delayed issuing her child, Y’s Education, Health and Care (EHC) Plan following an EHC needs assessment during 2024. She also complained the Council failed to provide Y with an education after Y was unable to attend school during the needs assessment period. The Council was at fault. It delayed issuing Y’s EHC Plan by seven weeks and failed to put alternative provision in place for Y between May and November 2024 when school was not accessible to them. The Council agreed to apologise and make payments to recognise Y’s loss of education and the distress caused.

The complaint

1. Mrs X complained the Council delayed issuing her child Y’s Education, Health and Care (EHC) Plan following an EHC needs assessment during 2024. She also complained Y had no education for 10 months after the family moved to the Council’s area.
2. Mrs X said Y’s education and social development has suffered and the matter has caused her distress and uncertainty.

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The Ombudsman’s role and powers

3. 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)
4. 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.
5. 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)
6. 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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How I considered this complaint

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

EHC Plans

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’s needs and what arrangements should be made to meet them.
10. 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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment; and

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.

11. Once the Council agrees to carry out the EHC needs assessment it should issue its decision whether to issue a plan within 10 weeks and a finalised EHC Plan within 14 weeks.

Section 19 Duty

12. 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.
13. 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).
14. In practice, we would expect to see councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. 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

15. Mrs X has a child, Y who has special educational needs and disabilities which affect their mobility. Y is of primary school age and previously lived in another council area, outside of England, and attended school with an EHC Plan. However, when Mrs X and Y moved to England the existing EHC Plan was ceased.
16. Mrs X moved to the Council’s area (Devon) in March 2024 and notified the Council of her new address in April 2024. Mrs X applied for a school place for Y through the usual school admissions route. Records show Y was allocated a place at School 1, a mainstream school, in April 2024 and Mrs X visited the school in early May. School 1 told Mrs X it was unaware of Y’s significant needs when agreeing to accept them. School 1 said it would need funding through an EHC Plan so it could meet Y’s needs and make the environment safe. School 1 contacted the Council who advised as Y’s previous EHC Plan had ceased when they moved from outside of England, a new EHC needs assessment was required.
17. Mrs X applied to the Council for a new EHC needs assessment for Y on 23 May 2024 and a few weeks later the Council agreed to carry out the assessment. In line with statutory timescales this meant the Council should have issued Y’s EHC Plan by 10 October 2024.
18. During the EHC needs assessment Y remained out of school without any education or alternative provision in place. Mrs X said School 1 could not safely admit Y due to their physical disabilities and other issues which required significant input from Occupational therapy and Speech and Language therapy.
19. Mrs X complained to the Council in early November 2024. She complained the Council had delayed completing the EHC needs assessment which meant Y still did not have a final EHC Plan. Mrs X said Y had been out of education since they came to live in the Council area. Mrs X urged the Council to issue Y’s EHC Plan so School 1 could get the funding needed to support Y.
20. The Council issued Y’s final EHC Plan on 27 November 2024 naming School 1 as Y’s placement.
21. The Council responded to Mrs X’s complaint in December 2024 and apologised for the delay in issuing Y’s EHC Plan. It blamed an unprecedented demand on its service over the last 18 months along with staffing challenges which caused a delay in writing Y’s final Plan. The Council confirmed Y’s EHC Plan had now been issued and funding would be allocated to School 1.
22. Mrs X remained unhappy and complained to us in January 2025. Mrs X raised as part of her complaint to us that the Council is not providing adequate funding to School 1 which means Y still cannot attend school full-time.

My findings

23. 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.
24. Following Mrs X’s request for an EHC needs assessment for Y and after agreeing to issue a Plan the Council should have issued the final EHC Plan by 10 October 2024. It did not do so until the end of November 2024 which was a delay of seven weeks and fault. It delayed Y’s access to a school and the support and specialist provision in the EHC Plan. This caused distress to Mrs X and impacted on Y’s education.
25. Prior to issuing the EHC Plan, Y did not have a school place. The Council was aware School 1 was not accessible for Y by at least the start of May 2024 after School 1 contacted it. There is no evidence the Council considered its Section 19 duty at the time around whether to put some alternative provision in place for Y while it completed the EHC needs assessment. On balance, given Y’s circumstances, it is likely the Council did have a Section 19 duty from at least May onwards and should have put alternative provision in place for Y. Not doing so was fault and meant Y went without any sort of education between May and November 2024.
26. In her complaint to us Mrs X raised concerns that following the issuing of the final EHC Plan there have been issues with provision and funding. It appears this injustice may be ongoing to date and therefore the Council will need an opportunity to investigate and respond to these concerns. It is open to Mrs X to make a new complaint to the Council about concerns from November 2025 onwards, after Y’s final EHC Plan was issued.
27. The Council currently has an ongoing SEND improvement action plan which we are overseeing. This includes addressing EHC needs assessment delays and actions around consideration and oversight of Section 19 duties when it is aware children are out of school. Therefore, I have not made any further service improvement recommendations. We will continue to monitor compliance through our casework.

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Action

28. Within one month of the final decision the Council agreed to take the following action:
1. apologise to Mrs X and pay her £200 to recognise the distress caused by the delay in issuing Y’s EHC Plan following an EHC needs assessment and the failure to put alternative provision in place for Y between May and November 2024 when they were unable to attend school. 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.
2. pay Mrs X £1500 to recognise Y’s loss of education between May and November 2024 after the Council failed to put any alternative provision in place for Y when they were unable to attend school.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I find fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman