Summary: Mrs X complained the Council delayed completing Z’s Education, Health and Care (EHC) needs assessment and issuing his EHC plan. Mrs X also complained the Council failed to provide Z with suitable alternative education provision, in line with its section 19 duty, and failed to communicate effectively. We have found the Council acted with fault. This caused Z an injustice in the form of missed education provision. This also caused avoidable distress and time and trouble. The Council has agreed to provide a written apology. The Council has also agreed to pay financial remedies to recognise Z’s loss of suitable education provision and Mrs X’s avoidable time and trouble. There are parts of Mrs X's complaint we have not investigated. We explain why in our decision statement.

The complaint

1. Mrs X complained the Council:
1. Delayed completing Z’s Education, Health and Care (EHC) needs assessment and delayed issuing Z’s final EHC Plan, breaching statutory timescales.
2. Failed to provide Z with alternative education provision when Z could not attend school for a prolonged period, in line with its duty under section 19 (S19) of the Education Act 1996.
3. Delayed responding to her complaints and communicated poorly.
2. Mrs X said the Council’s faults meant Z did not receive suitable education provision for a prolonged period, affecting his health, wellbeing and educational attainment. The Council’s faults also caused Mrs X avoidable uncertainty and distress.

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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. 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)
5. 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.
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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
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(1), as amended)

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What I have and have not investigated

9. Part of Mrs X’s complaint concerns Z’s lack of education provision during the 2022/23 academic year. These matters occurred more than 12 months before Mrs X’s approach to the Ombudsman. I have not identified a good reason a complaint about these matters could not have been brought sooner. There restriction set out in paragraph 6 applies.
10. Part of Mrs X's complaint concerns Z’s lack of education after the Council issued Z’s EHC Plan in late May 2024. I cannot investigate this part of Mrs X's complaint. The restriction set out and explained in paragraphs 7 and 25-28 applies.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
13. 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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Relevant legislation, guidance and policy

Alternative provision

14. 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.
15. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
16. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
17. 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))
18. 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)
19. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
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.

Education, Health and Care (EHC) Plans

23. 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.
24. 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. 
• 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).

Appeal rights and the Ombudsman’s jurisdiction

25. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
26. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
27. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
28. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Council’s complaints procedure

29. The Council operates a two-stage complaints procedure. At stage one, the Council says it will respond to complaints within a maximum of 20 working days. At stage two, the Council says it will respond within a maximum of 20 working days. It says if it needs more time, it will keep the complainant informed of the expected timescale.
30. The Council also says where it is confident it has correctly followed the relevant policy, procedure and/or legislation, it will not escalate the complaint. Instead, it will confirm the complainant can take their complaint to the Ombudsman.

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What I found

Key events

31. In June 2023, School N submitted a request for an EHC needs assessment for Z. This document submission set out the basis for the request, with details of Z’s circumstances and learning and support needs, along with relevant supporting evidence. The document also confirmed:
• Z had not attended School N during the 2022/23 academic year.
• Graduated approaches and phase transitions intended to help Z return to the setting had been unsuccessful.
• School N had made online learning available. Z had been able to access some activities online at home.
32. Mrs X said the Council began the EHC needs assessment around 26 July 2023.
33. Mrs X said on 10 October 2023, she asked the Council for an update. Mrs X said the Council did not respond, leading her to chase several more times in November 2023.
34. During this period, the Council said Mrs X raised concerns Z was not receiving educational provision. The Council said it confirmed Z was on roll at School N, but was not attending.
35. Mrs X said on 22 November 2023, the Council told her it was awaiting advice from an educational psychologist, to consider as part of the EHC needs assessment. On the same day, the Council said School N told the Council:
• It had made online learning available for Z.
• It had completed regular well-being checks.
• It would be making referrals and seeking attendance support from the Council’s SEN service.
36. Mrs X said in early January 2024, she again sought an update on Z’s assessment and asked when the Council would issue his EHC plan. Mrs X said the Council told her it would receive the necessary reports by the end of the month. Mrs X raised concerns about the time taken so far, but said the Council did not respond to this correspondence.
37. Mrs X said on 26 January 2024, Z was assessed by an educational psychologist.
38. The Council said it received the educational psychologist’s report on 31 January 2024. Mrs X said she was told Z's case would be considered by a panel in early February 2024. However, shortly after this, the Council told Mrs X the educational psychologist report it received was inadequate. Mrs X said she sought updates on next steps several times, but did not receive a substantive response.
39. On 21 February 2024, Mr and Mrs X attended a meeting with School N and the Council. The records of this meeting show:
• The Council said it received a referral for Z in July 2023, but the referral had been placed on hold because the circumstances were complicated. The Council said the meeting was to assess where matters were and consider next steps. It accepted the inadequate educational psychologist report had caused a delay in completing Z’s EHC needs assessment.
• School N said it had its own on-site alternative provision for students unable to attend mainstream classes. It said it was School N’s responsibility to provide Z with an education. It said it did this through the provisions available on the school site.
• Z’s parents highlighted the delays and Z’s lack of attendance. They said there had been a lack of support. Z had wanted to attend specific external alternative provision settings that seemed to be available to students attending other schools. Mrs X said Z could not return to School N.
• The Council accepted the situation was frustrating and there would be barriers to Z attending School N. It said it could not pre-empt what setting it would name in Z’s EHC plan. It said it would suggest alternative provision be explored, with the long-term aim being for Z to attend School N. The Council said School N had made efforts to accommodate and support this.
• Mr and Mrs X felt that Z was being denied suitable alternative provision based on cost. Mr and Mrs X did not feel clear about the outcome of the meeting, or what the next steps would be.
40. On 22 February 2024, the Council wrote to Mrs X and School N to summarise the outcome of the meeting and the Council's recommendations. The Council:
• Said the family had recently explored alternative provision and felt this would be positive, with Z keen to attend.
• Said School N had developed its own bespoke, nurture-based alternative provision.
• Said Z had been out of school for a long time and felt unable to attend the school setting.
• Recommended that Z’s wish to attend an alternative provision setting where he felt safe be recognised and facilitated. The Council set out the potential benefits of this approach.
• Recommended Mrs X and School N maintain good communication and work towards Z receiving some provision at the school, when he was ready to do so.
41. Later in February and March 2024, Mrs X sought updates on Z's educational psychologist report. On 20 March 2024, the Council shared an updated educational psychologist report with Mrs X, who confirmed it seemed fine.
42. The Council said on 10 April 2024, it sent Z's case to a decision panel. Mrs X said the Council told her on 11 April 2024 that it would issue an EHC plan to Z.
43. On 19 April 2024, Mrs X complained to the Council about Z’s lack of education and the delays in the EHC assessment.
44. On 30 May 2024, the Council issued Z's final EHC plan.
45. On 29 July 2024, the Council responded to Mrs X's complaint at stage one of its complaints procedure:
1. The Council said before it issued Z’s EHC Plan, it would expect School N to ensure Z received a suitable education. The Council said School N was responsible for making any required reasonable adjustments and ensuring appropriate provision was in place. The Council said after reviewing the EHC needs assessment request, it was unclear what School N had done to support these needs. It said it would investigate this further with School N.
2. It said it had named School N in Z's EHC Plan, though it accepted School N had said it could not meet Z’s needs. It said its records did not show whether it had consulted other settings. The Council said it should have completed additional case work to support School N, or explored alternatives. The Council said before it issued Z’s EHC plan, any issues around provision were for School N to address.
3. The Council accepted it had not issued Z’s EHC plan within statutory timescales. It said this was because of the delay in receiving the educational psychologist’s advice, which was a statutory requirement. It said there had been delays in receiving the advice and then a further delay in presenting the matter to a decision panel.
4. The Council said there was a shortage of educational psychologists and explained how it was trying to mitigate against this.
5. The Council apologised for the distress and frustration caused by the delays and by the casework it had completed in Z’s case. It said it was looking at ways to support Z in his final year at secondary school, including alternative or online provision.
46. On 14 August 2024, Mrs X asked the Council to escalate her complaint to stage two of its complaints procedure:
• Mrs X appreciated the commitment to improving provision for the following academic year. However, Mrs X said Z had not received any satisfactory education provision for the previous 18 months. Mrs X said there had been a lack of clarity over whether this was for School N or the Council to address. Mrs X set out the impact this loss of provision would likely have on Z’s future educational attainment.
• Mrs X sought a financial remedy for the time Z had been without an education.
47. On 20 November 2024, the Council responded to Mrs X. The Council said it would not consider the complaint further. It said further investigation would not result in a different outcome.
48. In January 2025, the Council offered Mrs X £700 to recognise a seven-month delay in completing Z’s EHC needs assessment and issuing his final EHC plan.

Analysis

Did the Council act with fault?

Alternative provision

49. The Council was alerted to Z’s attendance levels on 8 June 2023, as part of School N’s request for an EHC needs assessment. This request also confirmed that School N and Z had tried some reintegration measures, such as phased returns, but these had been unsuccessful.
50. Paragraph 21 sets out the actions the Ombudsman would expect the Council to take on being alerted to Z’s absence. I have seen no evidence the Council considered or took any action in respect of this notification at the time. The Council appears to have focused on the request for an EHC needs assessment, rather than considering the implications of the information contained within the referral.
51. The Council said it later contacted School N in November 2023 about Z’s attendance, following further concerns from Mrs X. School N confirmed Z remained on its roll and it had provided access to some online learning resources. However, I have seen no evidence the Council turned its mind to whether the education on offer to Z was available, accessible, and the equivalent of suitable, full-time education provision. I have seen no evidence the Council considered whether it needed to intervene, pursuant to its section 19 duty, to secure suitable education provision for Z.
52. The Council then did not consider the matter again until its meeting with School N and Mrs X in late February 2024. At this meeting, it supported the discussion, but made no decision about whether it needed to intervene to secure suitable alternative education provision. In its follow up recommendations, the Council accepted Z could not then attend School N and, in substance, accepted offsite alternative provision was the most suitable arrangement. However, it did not arrange this.
53. In the Council’s complaint response, it firmly placed the responsibility of securing suitable education provision for Z on School N, for the period before the Council issued an EHC Plan. However, as paragraph 22 sets out, the Council is responsible for securing this education provision, even if it delegates this responsibility to schools on a day-to-day basis.
54. In sum, the Council did not properly turn its mind to its duties under section 19 over a prolonged period, despite the threshold for this consideration clearly being met. It did not properly recognise its statutory responsibilities. I have found the Council at fault for this.

EHC needs assessment

55. School N asked the Council for an EHC needs assessment for Z on 8 June 2023.
56. Paragraph 24 sets out the statutory timescales for completing a needs assessment and issuing a final EHC plan, where the Council decides to do so. As the Council agreed to issue an EHC plan, it should have issued this plan by around 26 October 2023. The Council did not issue Z's final EHC Plan until 30 May 2024. As the Council accepted, this was a delay of around seven months.
57. The principal cause of this delay was the wider lack of available educational psychologists, leading to a delay in the Council obtaining this statutory advice. When the Council did receive this advice, it found it was insufficient. The Council told the Ombudsman this was because parts of the report were incomplete and it did not consider the advice provided allowed for equitable decision-making. The Council said it then had to obtain a further report, causing added delay. The Council also accepted there was some avoidable delay in taking Z’s case to a decision panel after it received the updated educational psychologist's advice.
58. The delay was therefore a combination of service failure and avoidable maladministration. I accept the Council's own findings of fault on this point and make the same finding.

Communication and complaints handling

59. Mrs X set out details of her attempts to maintain contact with and obtain updates from the Council. Mrs X’s account shows multiple instances where the Council did not respond to requests for updates, or where its contact was sporadic. On the balance of probabilities, I find Mrs X’s account to be credible. I have found the Council at fault for inconsistent communication with Mrs X.
60. Paragraph 29 sets out the timescales associated with the Council’s complaints procedure. Mrs X made her stage one complaint on 19 April 2024, meaning the Council should have responded by around 20 May 2024. The Council did not respond until 29 July 2024, a delay of around 10 weeks.
61. Mrs X asked the Council to escalate her complaint on 14 August 2024. The Council should have responded by around 11 September 2024. The Council did not respond until 20 November 2024, a delay of around 14 weeks.
62. I have found the Council at fault for failing to adhere to its complaints procedure.

Did the Council’s faults cause an injustice?

63. On the balance of probabilities, I believe if the Council had properly turned its mind to whether its section 19 duty applied in June 2023, it would have decided it did. This is because:
• Z’s attendance had been at 0% for the preceding academic year. This level of attendance over such a prolonged period should have compelled the Council to consider intervention for the upcoming academic year, had it properly considered its duties.
• When the Council belatedly turned its mind to the question, in February 2024 and in its later stage one complaint response, it agreed Z would benefit from suitable alternative provision and recommended this be explored. In its email setting out its recommendations, it said Z should be supported to engage with alternative provision where he felt safe, with a view to attending School N again when he felt ready. I am aware Z later began to benefit from attending a smaller, offsite alternative provision setting, the type Mrs X had been advocating for prior to and at the meeting in February 2024. Z’s circumstances in 2024 were the same as they had been in mid-2023. On balance, I therefore think the Council would have reached the same conclusions earlier, had it turned its mind to the question at the correct time. This means Z could have benefit from this type of offsite alternative provision much sooner than he did.
• Further, while the evidence suggests Z was accessing some online learning throughout this period, there is no suggestion this was consistent. Nor is there any indication these online resources were in any way equivalent to suitable, full-time education provision.
64. I have therefore found the Council’s faults caused Z an injustice, in that he did not receive suitable, full-time education provision between September 2023 and the end of May 2024. I have recommended the Council act to recognise the injustice of this lost provision.
65. I cannot consider any potential injustice occurring after the end of May 2024, for the reasons set out in paragraph 10.
66. The Council accepted and apologised for its delay in completing Z’s EHC needs assessment, and for the distress and frustration this caused. The £700 financial remedy the Council offered in respect of this injustice was in line with the Ombudsman's recommendations. I have not therefore made any further recommendations on this point.
67. The Council’s inconsistent communication and delayed complaints handling caused Mrs X avoidable frustration and time and trouble. These are injustices to Mrs X, which I have recommended the Council address.

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Action

68. In making these recommendations, I have had regard for the Ombudsman's published guidance on remedies. I have considered Z is a young person, without an EHC Plan at the time in question, but with identified needs. Z was not in a key academic transition year and received some online learning. However, this online learning was minimal and there is no evidence the provision Z did receive was equivalent to suitable, full-time education.
69. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs X and Z for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our published Guidance on Remedies.
2. Pay £3500 in recognition of Z’s missed education provision between September 2023 and May 2024. This is a figure of £1500 per academic term, for a period encompassing two academic terms and one month.
3. Pay Mrs X £100 to recognise the avoidable time and trouble incurred because of the Council’s delayed complaint handling. This is in addition to the £700 the Council offered for delays in completing the EHC needs assessment, which the Council should offer again if this has not yet been paid.
70. The Council should provide us with evidence it has complied with the above actions.
71. Following other recent investigations, the Ombudsman made several recommendations to the Council about ways it could improve its services around alternative provision and EHC needs assessments. These recommendations included developing a specific Section 19 protocol. To avoid duplication, I have not made the same recommendations again. The Council accepted these recommendations, and the Ombudsman will monitor the Council’s compliance and improvements through our ongoing case work.

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Decision

72. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman