Summary: Mrs X complained about delays in reassessing Y’s Education, Health and Care needs and the Council’s failure to arrange alternative provision while Y was out of school. The Council was at fault for delays in reassessing Y’s needs and for failing to maintain oversight of the provision in place for him, causing uncertainty and frustration. The Council has agreed to apologise and make a payment to reflect the injustice.

The complaint

1. Mrs X complains about how the Council handled her son, Y’s educational needs. Specifically, Mrs X says the Council:
• failed to complete an Education, Health and Care (EHC) needs reassessment and issue a new EHC Plan within statutory timeframes;
• failed to arrange alternative provision for Y while he was out of school;
• refused her request for Education Otherwise Than At School (EOTAS); and
• has communicated poorly and ignored emails from her.
2. As a result, Mrs X says Y missed out on education and socialising opportunities he is entitled to and she has had to reduce her self-employed working hours.

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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. 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. 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)
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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What I have and have not investigated

7. I have investigated from Y’s EHC Plan annual review in March 2024, up until Mrs X brought her complaint to the Ombudsman in January 2025.
8. We cannot direct changes to the sections in an EHC Plan relating to a child’s needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this. As Mrs X could have appealed the content of Y’s EHC Plan, including the decision not to name EOTAS, to the SEND Tribunal, I have not considered this aspect of her complaint.
9. I have considered whether the Council completed Y’s EHC needs reassessment within statutory time limits and how it maintained oversight of the provision he received in the timeline set out above. I have also considered how the Council communicated with Mrs X.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. 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

EHC Needs Assessment

12. A child or young person with special educational needs (SEN) may have an 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 SEND Tribunal or the council can do this. 
13. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
14. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.
15. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Alternative provision

16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
17. The "otherwise" category provides for a wide range of scenarios where the Council may have a legal duty under section 19. It would include, for example, when a child was refusing to attend school due to anxiety or phobia. (Statutory guidance ‘Alternative Provision’ January 2013)
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
19. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
20. When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.
21. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.

What happened

22. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
23. Y has SEN and his education is supported by an EHC Plan which named School A, a specialist school.
24. The annual review of Y’s EHC Plan took place on 18 March 2024. The review notes explain School A had secured all the provision within Y’s EHC Plan, but he had been struggling to attend, and his mental health had deteriorated. The notes explained School A had been trying to support Y through a part-time timetable, but his attendance had continued to deteriorate and it felt it was unable to meet his needs. Mrs X asked the Council to reassess Y’s EHC needs as she said a school setting was no longer suitable for him and he would benefit from EOTAS.
25. On 2 May 2024 the Council wrote to Mrs X to explain it had agreed to re-assess Y’s EHC needs and would seek advice from the relevant professionals. The Council said once it had received the advice, Y’s case would be passed to an EHC co-ordinator to confirm the decision on re-drafting his plan.
26. The Council received all the advice it had requested by 3 July 2024 and appointed an EHC co-ordinator to Y’s case. Th EHC co-ordinator was replaced by another EHC co-ordinator in August 2024.
27. On 20 August 2024, the Council issued a draft EHC Plan. This did not name an educational setting. Mrs X responded on 30 August 2024 to confirm she agreed with the contents of the draft EHC Plan and explained her preference would be for Y to receive an EOTAS package.
28. The Council considered Mrs X’s request for an EOTAS package in September 2024. The Council decided Y did not meet the guidance for EOTAS and his needs should continue to be met at School A with a bespoke package to meet his needs.
29. The Council wrote to Mrs X in October 2024 to explain it had decided Y’s case did not meet the legal test for EOTAS as all the provision outlined in his EHC Plan could be met at School A with a reintegration plan.
30. On 13 December 2024, the Council received a 15-day absence form from School A. This explained Y had previously been on a part-time timetable but this had not worked, and Y was no longer attending school.
31. The Council issued a final EHC Plan for Y on 9 January 2025, naming School A as his educational setting.
32. In response to our enquiries, the Council acknowledged it had failed to maintain oversight of the provision in place for Y from the date of the annual review of 18 March 2024 until it issued a final EHC Plan in January 2025, with provision then not starting until April 2025. In recognition of this, the Council agreed to pay Mrs X £4,000. The Council also acknowledged there were delays in the process of reassessing Y’s EHC needs and offered to pay Mrs X £200 in recognition of this.

Analysis

EHC needs reassessment

33. The Council received a request to reassess Y’s EHC needs on 18 March 2024 and should have informed Mrs X of its decision within 15 days, meaning by 8 April 2024. The Council did not notify Mrs X of its decision until 29 April 2024, three weeks later. This is fault and caused uncertainty for Mrs X, which is injustice.
34. The Council then had 14 weeks to issue a final EHC Plan for Y, meaning by 5 August 2024. However, the Council did not issue Y’s final EHC Plan until 9 January 2025, around five months later. This is a considerable delay which would have caused significant uncertainty and frustration for Mrs X, as well as frustrating her rights to appeal to the tribunal. The delay also created uncertainty around whether Y was missing out on special educational provision he otherwise would have been entitled to between August 2024 and January 2025. This is injustice.
35. The Council has already offered to pay Mrs X £200 to recognise the delays, however I find it ought to make a further payment to recognise the extended period of the injustice.

Alternative provision

36. The notes from Y’s annual review of 18 March 2024 show his attendance at School A had broken down. School A explained Y had previously been on a part-time timetable, but this had broken down and it no longer felt able to meet his needs.
37. The Council has acknowledged it failed to maintain oversight of the provision in place for Y from the date of the annual review until January 2025 and then alternative provision did not start until April 2025. This is fault. It is not my role to say what alternative provision Y should have received or what level of education was suitable for him, however this caused uncertainty about what level of education Y should have been receiving across around three full school terms, which is injustice. The Council has now agreed to pay Mrs X £4,000 to recognise this injustice, and I find this is reasonable in the circumstances.

Communication

38. Mrs X has said the communication from the Council has been poor and it has ignored emails from her. I have not seen a full catalogue of communication between Mrs X and the Council throughout the timeline I have investigated. However, from what I have seen the Council has been in touch with Mrs X and has been accessible throughout the timeline. I appreciate the level of communication from the Council may not have been what Mrs X expected, but I have not seen enough evidence to allow me to find fault that would have caused significant injustice to Mrs X.

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Action

39. To address the injustice identified above, the Council should carry out the following actions within one month:
• Provide Mrs X with a written apology for the injustice caused by the failure to complete Y’s EHC needs reassessment within the statutory time limits and for failing to maintain oversight of the provision in place for him between March 2024 and January 2025. 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 I have recommended in my findings; and
• Pay Mrs X £500 to acknowledge the distress, frustration and uncertainty caused by the Council’s failure to complete Y’s EHC needs reassessment and issue a final EHC Plan in line with the statutory timescales.
• Pay Mrs X £4,000 to recognise the missed provision between March 2024 and April 2025.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman