• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Action
• Decision

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s delays in completing her son’s (Y) Education Health and Care needs assessment and in issuing his final Education Health and Care Plan. She also complained about the Council’s failure to ensure Y received education when he could not attend his school. We found fault with the Council. The Council’s fault caused injustice to Y and Mrs X. The Council has agreed to apologise and make symbolic payments.

The complaint

1. Mrs X complains about the Council’s delay in completing the Education, Health and Care (EHC) Plan process for her son Y. This meant, she says, that Y missed education and support when he could not attend his school, which also affected the rest of the family.

Back to top

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. 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)
3. 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)
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
7. 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.
8. 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.
9. 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.
10. 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)
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

12. As explained in paragraph four we would normally investigate what happened within 12 months from when the complainant came to us. Mrs X came to us in mid-February 2025:
    • 1. I have decided to investigate the way the Council fulfilled its Section 19 duty for Y from mid-February 2024;
      2. regarding the EHC Plan process I have investigated what happened from mid-December 2023, when Y’s final EHC Plan should have been issued. This is because Mrs X’s delay in bringing this complaint to us was not excessive, the injustice caused by the delay was ongoing and it would be difficult to decide on the timescales for issuing Y’s EHC Plan without going a few months further than 12 months.
13. The Council issued Y’s final EHC Plan at the beginning of September 2024 and this is when Mrs X’s appeals right got engaged. Mrs X appealed Section I of Y’s EHC Plan. Because of that, as explained in paragraphs six to eight, we cannot consider any alternative provision issues from the beginning of September 2024 as providing education to Y was closely linked to the disagreement between Mrs X and the Council about Y’s school placement.

Back to top

How I considered this complaint

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

Back to top

What I found

Legal and administrative framework

EHC Plan timescales

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 SEN 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;
    • 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;
    • where councils decide it is not necessary to issue an EHC Plan for a child, they should notify the parents within 16 weeks from the date they received request for an EHC needs assessment;
    • 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); and
    • councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

Alternative provision

17. 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.
18. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. 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)
19. 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)
20. If a child is unable to attend school because of illness, the council must make alternative arrangements once the child has been absent for 15 days, either consecutively or cumulatively. The council must consider the individual circumstances of each child and take account of any medical evidence or advice when deciding what arrangements to make. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

EHC Plan process

21. At the end of July 2023 Y’s school (School 1) asked the Council to carry out an EHC needs assessment for Y. At the end of August the Council agreed to start the process.
22. The Council allocated an Educational Psychologist (EP) for Y in mid-April 2024. The EP prepared and sent her statutory advice at the end of May 2024.
23. In mid-July the Council sent Y’s draft EHC Plan to Mrs X. A few weeks later Mrs X told the Council she wanted Y to attend a specialist placement. Her preference was for an independent special school (School 2) to be named in his plan.
24. At the beginning of September 2024, following a phone call, the Council sent Y’s final EHC Plan to Mrs X with School 1 named in Section I.
25. In mid-September 2024 Mrs X had further communication with the Council about Y’s school placement. In view of the disagreement about the school placement, Mrs X appealed Section I of Y’s EHC Plan.
26. In mid-February 2025 the SEND Tribunal issued a Consent Order in which it confirmed the Council had agreed to name School 2 in Section I of Y’s EHC Plan.

Alternative provision

27. In November 2023 Y stopped attending School 1 following advice from the Children and Adolescent Mental Health Services (CAMHS).
28. At the beginning of February 2024 School 1 sent Section 19 medical request to the Council. After some correspondence with School 1, two weeks later the Council agreed to arrange alternative provision for Y.
29. In mid-March 2024 a meeting took place to discuss suitable options for Y’s education. Mrs X, the Council’s representative, School 1’s representative, Children’s Support Service (CSS) and CAMHS attended. CAMHS recommended individual face to face English and Maths tuition and excluded a possibility of online or small group tutoring. In view of this recommendation CSS could not meet Y’s needs. The Council decided to purchase individual package of educational support from an unregistered alternative provider.
30. Throughout April 2024 the Council corresponded with School 1 about the information needed to set up individual tutoring for Y.
31. In the second week of May 2024 the Council commissioned a provider (the Provider). It took further two weeks to arrange a planning meeting to finalise the details of Y’s tutoring.
32. The Provider started delivering tutoring for Y from the beginning of June 2024. It started with one hour a day. CAMHS was expected to provide advice to inform increase of the tutoring time.
33. In mid-June 2024 Mrs X asked for the tuition to change from five to three days a week and daily hours to increase from an hour to an hour and a half per session. The Provider agreed and carried out tutoring in accordance with a new schedule.
34. In the second week of July 2024 a review of tutoring took place. It was confirmed the changes introduced to Y’s tutoring schedule followed medical advice. The participants also discussed plans for September 2024.
35. Y’s tutoring continued after the summer break until mid-October 2024.

Analysis

EHC Plan process

36. The Council should have issued Y’s EHC Plan by mid-December 2023. It did so at the beginning of September 2024. The Council delayed issuing Y’s EHC Plan by eight and a half months.
37. The Council’s failure to comply with the statutory timescales for an EHC needs assessment and issuing of Y’s EHC Plan is fault. Most of the delay was caused by the unavailability of EPs, which is a nation-wide problem. The shortage of EPs is outside the Council’s control and, as explained in paragraph three, we would see this part of the delay as a service failure.
38. The Council’s fault caused injustice to Y and Mrs X as:
    • Y could not attend his school and was missing education. Finalising educational arrangements for him was important to avoid further loss of education;
    • Mrs X was increasingly distressed by the significant delays on the Council’s part, which meant she was uncertain of the Council’s position on Y’s school placement. The Council’s failure to comply with the EHC Plan statutory timescales meant she could not challenge the Council’s position on Y’s school placement for longer than necessary. If not for the Council’s delays, Y’s placement dispute is likely to have been resolved a few months earlier.

Alternative provision

39. In February 2024, shortly after receiving the medical referral from School 1, the Council agreed to arrange alternative provision for Y. This part of the process was carried out correctly.
40. It took the Council further three months to arrange the provision. This length of time is excessive even after considering individual circumstances of this case which made making the arrangements more difficult. These included the unsuitability of CSS for Y which meant the Council had to commission services from an unregistered provider. Besides, due to Y’s mental health difficulties, CAMHS and School 1 had to be involved in any discussions about the educational arrangements proposed for Y.
41. We would normally allow a few weeks for arranging alternative provision for a child who cannot attend school. Even after taking into account Y’s individual circumstances, the Council should have put alternative provision for him by mid-April 2024.
42. The delay of a month and a half in making arrangements for Y’s alternative provision is fault. It caused him injustice as he missed education. It also caused injustice to Mrs X as she was distressed at Y not receiving any educational support.
43. The Council finalised details of the education offered to Y from the beginning of June 2024 following consultations with Mrs X, School 1 and CAMHS. After the first few weeks the Council reviewed Y’s progress and confirmed changes recommended by the health professionals supporting Y. The Council acted properly when deciding how much education Y could access and how it should be delivered.

Service improvements

44. For some months the Council has been working to improve its EP resources in line with its SEND Strategy Plan. In June 2024 the Council approved “The SEND Additional Assistance Plan”, which aimed to address the growing backlog of EHC needs assessment requests and the unacceptably long timescales for assessments and issue of EHC Plans. The Council has recognised the impact of the extended waiting time on children, young people and their families. The actions agreed in the plan include:
    • recruitment of time limited SEND Operations Coordinators;
    • recruitment of time limited SEND Operations Partners;
    • implementing a “package of support while waiting”;
    • increasing the level of support and challenge to schools and other educational settings;
    • addressing the parents’ lack of confidence in the system through communications approaches and relationship building;
    • increasing business support capacity;
    • allocating Customer Service Centre to take incoming SEND phone calls;
    • introducing SEND engagement facilitators.
45. Details of the plan show the Council’s determination to improve its SEND services, in particular within EHC needs assessments. The events Mrs X complained about took place before the Council could have fully implemented improvements to its SEND services.
46. In a recent decision we recommended the Council introduce a system of regular updates for parents and young people waiting for EHC needs assessments. We will be monitoring the effectiveness of the Council’s actions to improve its services through our casework.

Back to top

Action

47. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
    • apologise to Mrs X and Y for the injustice caused to them by the faults identified. 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;
    • pay Mrs X £450 to recognise Y’s loss of education from mid-April to the end of May 2024;
    • pay Mrs X £850 to recognise the negative impact of the delay within the EHC Plan process.

The total the Council should pay is £1,300 The Council will provide the evidence that this has happened.

Back to top

Decision

48. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page