Summary: Mrs X complained about the Council’s delays with an Education, Health and Care needs assessment. She also said the Council did not provide alternative provision for her son when he struggled to attend school. We found fault with the Council’s delay and for not being able to evidence how it made its decisions about alternative provision. This caused frustration, uncertainty, and missed education. The Council has agreed to apologise and pay a symbolic payment to remedy the injustice.

The complaint

1. Mrs X complains about the Council’s failure to complete an Education, Health and Care (EHC) needs assessment for her son within statutory timeframes. She also says the Council has not provided support for her son who has had limited education since September 2024. This has caused significant frustration, distress and inconvenience to the family and her son has missed out on educational progress and opportunities.

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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. 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. 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)
5. 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)
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. Mrs X complained to us in March 2025. I have considered events from September 2024 to September 2025 (as that is when the Council issued a final EHC Plan). Events have moved on since Mrs X’s complaint to us, but there has been ongoing injustice, and I have sufficient information to make findings up to this date.
8. Mrs X made a second formal complaint to the Council in May 2025. This related to her dissatisfaction on how it decided not to issue an EHC Plan. In line with Paragraph 5, as Mrs X appealed this decision, the substance of her second complaint is not in our jurisdiction to consider.

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How I considered this complaint

9. I discussed the complaint with Mrs X and considered her views.
10. I made enquiries of the Council and considered its written responses and information it provided, 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 received before making a final decision.

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What I found

Law and administrative background

Education, Health and Care (EHC) Plans

12. 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. 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.
13. 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 if the council decides not to issue an EHC Plan, it should make this decision within 16 weeks of the request for an assessment.
14. As part of the EHC needs assessment, councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
15. Parents have a right of appeal to the SEND Tribunal. This is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Alternative provision

16. 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.
17. We issued a focus report "Out of school, out of sight?" issued in July 2022, updated in August 2023. This highlighted 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.

Background

18. Mrs X’s son (Y) started the “School” in September 2024. He struggled to attend due to his high anxiety and other needs. He could sometimes attend a few hours a week. He was diagnosed with Autism in late January 2025.

What happened – summary of key relevant events

19. In mid-September 2024, the School contacted the Council for advice. It had not made progress with Y’s attendance even with the support it had put in. The Council recommended an EP consultation in October.
20. At this time, Mrs X made an EHC needs assessment request to the Council and mentioned Y’s limited attendance at the School.
21. In early October 2024, the School tried a part time timetable for Y and notified the Council. Y did not make progress with this.
22. The next week, the School consulted with the Council EP about support for Y. The EP noted the School’s actions, gave advice and agreed next steps for the School to build a relationship with Y to encourage attendance.
23. In mid-November 2024, the School submitted a Section 19 request to the Council.
24. In late November 2024, the Council EP had a follow up review consultation with the School. It noted the School made further adjustments but Y still found it difficult to manage. The EP discussed further things the School could try.
25. In mid-December 2024 and late January 2025, the Council asked the School for further information for the Section 19 request and any update on medical evidence, the School said no.
26. The next week, the Council took Y’s case to Panel. The Panel agreed Y had SEN needs. It noted no current involvement with health professionals. It said the part time timetable remained appropriate and the School should ensure adjustments and provision to meet needs. The Council shared the outcome with the School a few days later. It recommended to consider if an EHC needs request or EP consultation was required. I cannot see it updated Mrs X.
27. From February 2025, Y started attending small group provision at the School twice a week with some success, but it was not always consistent. The School also funded an hour a week of Mindjam support.
28. In February 2025, the Council sent its Stage 1 response to a formal complaint made by Mrs X. It said the shortage of EPs was delaying the EHC needs assessment. In early March 2025, the Council responded at Stage 2. It considered Y’s education and said there was no health evidence supporting the Section 19 request. It advised the School should continue to support Y. Mrs X complained to us.
29. From March 2025, the School arranged online tutoring for Y, around 2 hours a week. In April 2025, the Council EP assessed Y for the EHC needs assessment.
30. In late April 2025, the Council sent a letter to Mrs X with its decision not to issue an EHC Plan. It noted Y’s difficulties with school attendance but understood Y had support via small school provision. Mrs X appealed this. She wrote to the Council and provided recent medical evidence, including from the GP.
31. In May 2025, the Council received a request from the School to look into new medical evidence which was not submitted in the initial Section 19 request. The Council agreed actions for the School to offer tuition and review the small school sessions.
32. In early June 2025, Mrs X sent a Section 19 request to the Council. She said Y could not attend the School full time due to unmet special educational needs. She did not consider the small group provision suitable as Y could only access this twice a week for a few hours. She said the online tuition by the School was not adequate full-time provision and Y could not always access it.
33. At the end of June and early July 2025, the Council considered Mrs X’s request at Panel twice. The School shared the outcomes with Mrs X. The Council considered the School was providing a suitable offer to Y and did not consider it necessary for the Council to become involved with the education. It noted Mrs X’s private psychologist report.
34. In early July 2025, the Council wrote to Mrs X to say it did not oppose her appeal. A few days later it issued a draft EHC Plan.
35. In late July, the School wrote to the Council in response to the draft Plan, to say it could not meet Y’s needs going forward. It had provided tutoring and mentoring online but it had concerns it did not help his ability to access lessons.
36. In early September 2025, the Council issued a final EHC Plan for Y.
37. In response to my enquiries, the Council recognised its delay with completing the EHC needs assessment. It offered £300 to remedy this.

Analysis

38. During most of the period considered, Mrs X’s request for an EHC Plan ran in parallel with her request for alternative education provision.
39. The investigation is limited to considering the role of the Council. We cannot consider the actions of the School as they are outside our jurisdiction to investigate.

EHC needs assessment

40. The Council received Mrs X’s request in mid-September 2024. The Council sent its decision not to issue an EHC Plan in late April 2025. In accordance with SEN Regulations (Paragraph 13) it should have done this by early January 2025. This was a delay of 3 months.
41. I acknowledge the shortage of EPs caused the delay; however statutory guidance is clear with timeframes and the Council failed to meet this. This is fault in the form of service failure (see Paragraph 3). This caused Mrs X frustration as she had to wait longer than necessary for the decision and delayed her appeal rights. The Council has offered £300. This is in line with our Guidance on Remedies and is appropriate to remedy this delay.
42. The Council has an action plan in place to reduce backlogs caused by the lack of EPs. We are monitoring this, and it is not necessary to recommend further service improvements on this part.

Alternative provision

43. The Council had contact with the School initially and in the first instance, it was reasonable to try recommended adjustments to work towards Y’s attendance at the School. The Council appropriately reviewed this with the School in November 2024. It then asked for further information for Section 19 considerations and since early 2025, the Council made a number of Panel decisions about Y’s case. This is generally in line with our expectation for councils to make timely decisions.
44. However, I have concerns from this point as there appears to be no detailed running case records or notes from the Panel meetings to show its decision making, only the outcomes. Without contemporaneous evidence, there is a lack of transparency. I cannot see what was discussed each time. This is fault with record keeping. I expand further on this below with examples:
• In January 2025, the Council noted no medical evidence at that point, but I cannot see if it properly considered Y’s general individual circumstances or reasons why it thought the part time timetable was appropriate. It also suggested other routes, but these had already taken place in Y’s case, which also calls into question if this had been considered. This fault caused uncertainty to Mrs X.
• After this decision, the School made some progress from February 2025 as it arranged some provision for Y. But by May 2025, the School asked the Council to review new medical evidence Mrs X had sent. Notes show the Council had a discussion with the School. But I cannot see if or how it specifically reviewed the new medical evidence at that point to consider if it should make another Section 19 decision, especially given it had been requesting this previously. This again caused uncertainty to Mrs X.
• With the June and July 2025 Panels, again I have not seen supporting records from these to support its decision making. Provision should be suitable and full-time. I cannot see the reasons why, or how the Council decided the School’s current limited offer (which fell far below this) was suitable for Y’s specific needs. Especially given Mrs X’s concerns Y needed more and his potential issues with accessing it. While the School funded and arranged this – the ultimate responsibility lies with the Council for providing suitable full time alternative education. I also cannot see if the Council put in place measures to monitor the ongoing progress of this to consider if and how provision should be adjusted or increased depending on Y’s capability and needs. This again caused uncertainty to Mrs X.
45. In addition, I cannot see the Council consistently kept Mrs X updated with decision outcomes around Section 19. It relied on the School to do this and provide medical evidence, rather than ask Mrs X directly. This is fault with poor communication and caused distress to Mrs X.
46. Considering the points above, overall, I am not satisfied the Council has evidenced proper consideration of its Section 19 duty from early 2025. I consider it at fault, causing injustice with Y’s limited provision between January 2025 to September 2025.
47. We have made recent decisions identifying similar fault around alternative provision where service improvement recommendations have already been made. These need time to embed so it is not necessary to make further recommendations.

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Action

48. To remedy the personal injustice set out above, the Council has agreed to carry out the following actions within one month of the final decision:
• Apologise to Mrs X in writing for the injustice caused by the faults identified (in line with our guidance on making an effective apology);
• Pay Mrs X the symbolic payment of £300 it offered to recognise the injustice caused to her and Y with the delayed EHC needs assessment decision;
• Pay Mrs X a symbolic payment of £2,000 to recognise the impact to Y for the lack of education for two school terms. This could be used for Y’s educational benefit; and
• Pay Mrs X a symbolic payment of £150 for her uncertainty and frustration caused by the other faults identified.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I find fault causing injustice. The Council has agreed to the recommendations to remedy the injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman