Summary: The Council delayed completing Miss X’s child, Y’s, Education, Health and Care (EHC) Plan and then failed to secure the provision in the Plan. It also failed to arrange suitable alternative provision when Y was unable to attend school. This caused Y to miss out on part of their education and caused Miss X distress, uncertainty and frustration. The Council has agreed to apologise to Miss X and make a payment to recognise the impact of its failings. It will also review its approach to delivering alternative provision when a child cannot attend school.

The complaint

1. Miss X complained the Council delayed finalising her child, Y’s, Education, Health and Care (EHC) Plan and then failed to secure the provision in the Plan once it was finalised. She says Y has missed out on the SEN provision in their Plan, causing Miss X distress and uncertainty. She wants the Council to name a school placement for Y and secure the provision in their EHC Plan.

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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. 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)
3. 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. 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)
5. 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

6. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. Miss X complained about events that occurred more than 12 months before she came to us. I have decided to investigate events from October 2022, when an Education, Health and Care needs assessment was requested. This is because I do not consider it was reasonable for Miss X to complain during this time. She had a reasonable expectation the Council would complete the assessment before Y was due to start primary school in September 2024. As soon as it became clear this would not happen, she complained to the Council.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council have 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

The Law

Education, Health and Care (EHC) Plans

10. 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 the council can do this. 
11. 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. 
• 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).

12. 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).
13. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
14. Those consulted have a maximum of six weeks to provide the advice. 

Alternative provision

15. 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.
16. 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)
17. 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)
18. 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))

The Council’s complaint process

19. The Council operates a two stage complaints process. It aims to respond to both stage one and stage two complaints within a maximum of 20 working days for each stage.

What happened

20. The Council received a request for an Education, Health and Care (EHC) needs assessment for Miss X’s child, Y, on 24 October 2022. Y was due to start primary school in September 2024 and would turn statutory school age in January 2025.
21. On 24 November 2022 the Council agreed to assess Y. It immediately requested advice from various professionals including an Educational Psychologist (EP), Occupational Therapist (OT) and Speech and Language Therapist (SALT).
22. The Council received advice from the EP in March 2023, the OT in July 2023 and the SALT report in August 2023. It issued a draft EHC Plan in September 2023 and immediately consulted two local specialist schools, schools A and B. At the same time Y started attending the nursery at school A. Both schools said they did not have capacity to admit Y for a September 2024 start. The Council consulted with another primary school in December 2023.
23. Miss X complained in July 2024. She said the Council had not kept her updated and delayed finalising Y’s EHC Plan. She said the delays meant Y had missed out on a place at school A and they currently had no school offer in place for September.
24. The Council responded in August 2024. It accepted it was at fault for delays in the assessment process. It said it would speak to schools A and B again about whether they would be able to admit Y with adjustments in place. In the interim it said it would speak to school A about Y attending nursery for the remainder of 2024. It added it would issue a final EHC Plan naming “specialist primary school” as Y’s provision and would immediately request an annual review to reflect any changes in Y’s needs.
25. The Council issued Y’s final EHC Plan on 18 September 2024. The provision in the plan was school focused with outcomes focused on Y’s achievements by the end of key stage one of their education.
26. The Council says as no school place was available, it began looking at alternative provision options in October 2024. At the same time Miss X asked the Council to escalate her complaint to stage two. She said school A had said there had been no contact from the Council about Y remaining there for the rest of 2024. The Council did not immediately respond to Miss X’s complaint. Y turned statutory school age in January 2025 but remained out of school. Miss X complained to the Ombudsman.
27. The Council responded to Miss X’s stage two complaint in February 2025. It apologised for the delay in responding. It said school A continued to say it could not admit Y as it had no capacity. It accepted it had failed to start the annual review process as promised and accepted it had failed in its duty to provide Y with a section 19 alternative education. It offered Miss X £100 to recognise the impact of its failings.
28. In May 2025 the Council told the Ombudsman schools A and B still had no capacity and it was seeking alternative provision for Y. It carried out an annual review in June 2025 and school B said it could admit Y from September 2025. When asked what consideration it had given to its section 19 duty to provide Y with an alternative education the Council said none of its providers could meet Y’s needs.

My findings

EHC Needs Assessment and Plan

29. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Having agreed to assess Y and then issue an EHC Plan the Council should have issued the final EHC Plan within 20 weeks. This was 13 March 2023. The Council issued Y’s EHC Plan on 18 September 2024; a delay of 18 months. This was fault.
30. EHC needs assessments must include advice from professionals, including an EP. The Council also sought advice from an OT and SALT. The Council should have ensured it received the advice from these professionals within six weeks. It took 18 weeks to receive the EP advice, 31 weeks to receive the OT advice and 36 weeks to receive the SALT advice. It then issued the draft EHC Plan within a month.
31. The Council has not met these timescales due to the increased demand for EHC needs assessments. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing Y’s EHC needs assessment is fault (service failure). This caused Miss X frustration, distress and uncertainty.
32. Once the Council received the advice, it should have issued Y’s final EHC Plan within six weeks. It took the Council an additional 13 months to issue the final EHC Plan. This was fault.
33. Y was due to start primary school in September 2024, and the Plan issued in September 2024 is intended to be delivered in a school setting. While the delays issuing the Plan caused Miss X frustration, distress and uncertainty I cannot say Y missed out on the SEN provision in the Plan before September 2024. However, from September 2024 onwards the Council was under a duty to secure the provision in Y’s EHC Plan. There is no evidence this happened, and Y missed out on three terms of special educational provision between September 2024 and July 2025.

Section 19 alternative provision

34. Y turned statutory school age ahead of the spring term starting in January 2025. The Council has 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 Council accepted in its stage two response that it had failed in its section 19 duty and explained in its response to our enquiries this was due to none of its providers being able to meet Y’s needs. Regardless of this, the Council remained under a duty to delivery Y’s alternative provision. Other than its responses to Miss X and the Ombudsman that it was seeking provision, there is no evidence to suggest a concerted effort by the Council to deliver on its duty. This was fault and caused Y to miss out on two terms of alternative provision.
35. We typically recommend between £900 and £2,400 per term in recognition of lost provision and education. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss. Y missed out on three terms of special educational provision, including two terms of alternative provision once Y had reached statutory school age.
36. Considering Y was not attending school or receiving any provision, I have recommended £1,200 a term for the missed special educational provision and alternative provision. This reflects Y’s age and the fact they have a placement from September 2025 which can begin to remedy some of the lost provision going forward.

The Council’s complaint handling

37. Miss X asked the Council to escalate her complaint to stage two in October 2024. The Council should have responded within 20 working days but did not respond for four months. This was fault, causing Miss X further uncertainty and frustration.
38. Following previous investigations, the Council has explained the steps it is taking to resolve the issues with its EHC needs assessments and complaint handling. Because the Council is already taking suitable steps, I have not made any service improvement recommendations for these failures. We will continue to monitor the Council’s progress through our casework.

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Action

39. Within one month of the final decision, the Council has agreed to:
1. Apologise to Miss X for the impact of the failings identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
2. Pay Miss X £3,600 to recognise the impact of the loss of three terms of special educational provision, including two terms of alternative provision.
3. Pay Miss X £500 to recognise the impact of its delay in issuing Y’s EHC Plan.
4. Pay Miss X £100 to recognise the impact of its delayed complaint handling.
40. Within three months of the final decision, the Council has agreed to:
1. review its approach to delivering section 19 alternative provision to ensure it explores all avenues to meet its section 19 duties, regardless of provider availability.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman