Summary: Miss X complained about the Council’s delays with an Education, Health and Care needs assessment. She also said her child had a lack of education when they struggled to attend school. We found fault with the Council’s delays and for not being able to evidence proper consideration or make timely decisions about alternative provision. This caused significant frustration, uncertainty, and missed education. The Council has agreed to apologise and pay a symbolic payment to remedy the injustice.

The complaint

1. Miss X complains about the Council’s failure to complete an Education, Health and Care needs assessment within statutory timeframes. She also says the Council has not provided support for her child who has had limited education since October 2023. This has caused significant frustration, distress, and inconvenience to the family and her child 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, section 30(1B) and 34H(i), 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 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. 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)
7. 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

8. Miss X refers to her child having limited education since October 2023. This is further back than 12 months before coming to us in March 2025. Part of this complaint is therefore late (see Paragraph 4). I will not consider that far back as I am satisfied Miss X could have complained specifically about this earlier period sooner.
9. I have investigated this part of the complaint from March 2024 (12 months prior to her complaint to us) to December 2024 (when the Council issued a final Education, Health and Care Plan). Miss X then had appeal rights from this point, which she used. This means events after this are outside our jurisdiction to consider (see Paragraph 5).

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How I considered this complaint

10. I discussed the complaint with Miss X and considered her views.
11. I made enquiries of the Council and considered its written responses and information it provided, as well as relevant law, policy and guidance.
12. Miss 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

13. 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. 
14. 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: 

• 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 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.
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

15. The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
16. 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). Those consulted have a maximum of six weeks to provide the advice. 
17. 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

18. 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.
19. We issued a focus report "Out of school, out of sight?" 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

20. Miss X’s child (Y) has special educational needs. They attended the ‘School’. In October 2023, the School contacted the Council with concerns about Y’s attendance. Y struggled to attend because of high levels of anxiety, difficulties with the environment and their needs.
21. Between October 2023 and February 2024, Miss X had contact with the Council about Y’s attendance, including her concerns the School could not meet Y’s needs. She received support from the Council through a social worker and tried many strategies with Y with little success. At some point, Y had been in on a part time basis for a few hours a week. It appears Y later stopped attending completely. Y was at forest school once a week. Miss X wanted a specialist school placement for Y.

What happened – summary of key relevant events I am considering

Education, Health and Care needs assessment

22. In mid-October 2023, the Council received Miss X’s EHC needs assessment request.
23. At the start of April 2024, the Council received the Educational Psychologist (EP) report. It sent a draft EHC Plan in May 2024 and issued another draft in July 2024 after Miss X’s comments.
24. Between July and August 2024, the Council sent consultations to other schools. Miss X’s preference was Setting 1. The Council agreed to hold off finalising it as she wanted it to have the chance to respond at the start of the school year. Setting 1 offered Y a place in October 2024. After internal Panel meetings and other consultation responses, the Council did not agree Setting 1.
25. In December 2024, the Council issued a final EHC Plan, naming the School. Miss X appealed. She said the School was unsuitable as Y already could not attend it.

Y not attending school

26. In April 2024, Miss X emailed the Council several times for a reply to her request for alternative provision (AP) made a few months before. She wanted Y to have access to some education in the short term during the ongoing EHC needs process, starting small.
27. In late May 2024, the Council apologised for the delay. It failed to contact her with a previous decision, but it now had the EP report it needed and would review her AP request again.
28. Between June and November 2024, the Council had several meetings with Miss X, the School and other supporting professionals. These discussed the current situation with Y. I have extracted some relevant points from the case notes:
• June 2024 – the record noted Miss X was struggling with Y at home and had requested tutoring going forward. The School had taken books to Y to engage with.
• September 2024 – the record noted Y was accessing an external AP session which was going well. Miss X said the School had done what it could with Y’s attendance, but it was not a good fit for their needs. The Council had approved educational AP and the School wanted funding to support this.
• October 2024 – the record noted Y had a positive visit to Setting 1 and offered a place. Miss X wanted AP while waiting for a school place.
• November 2024 – the record noted Miss X had paid for external AP to support Y accessing some education. The Council’s Panel disagreed with Setting 1 for Y. It would release funding to the School to support AP provision for Y. Miss X sent a proposed timetable of external AP she had put together with providers. The School believed it could offer smaller group provision and 1:1 English and Maths to meet Y’s needs in that way.
• December 2024 – the Council was satisfied the School could meet Y’s provision but it was a case of getting Y into the School, with gradual plans to reintegrate them. The Council named the School on Y’s final EHC Plan.

Miss X’s complaint

29. In late October 2024, Miss X formally complained to the Council. At Stage 1, the Council said:
• It apologised for the delays with the EHC needs assessment. This was partly due to the national shortage of EPs. It had backlogs because of increased demands outweighing staffing capacity. The EP completed their report in April 2024. It was still working to name a setting for Y.
• It said Section 19 did not apply in Y’s case as it had no evidence they were medically unfit to attend or there was no suitable school for them. It noted Y had been on a part time timetable at Miss X’s request.
30. In mid-December 2024, the Council responded at Stage 2. It kept its findings from the first complaint response. It explained why it decided to name Y’s current School and referred to Miss X’s appeal rights. In March 2025, Miss X complained to us.

The Council’s response to my enquiries

31. In response to my enquiries, the Council outlined the time taken with consultation requests, discussions it held and decisions from internal Panels. It recognised these could have been completed sooner to avoid further delays with the EHC needs assessment. It also accepted while Miss X later asked for it to hold off finalising it, it should have still issued it to allow her access to her appeal rights, while it continued the consultations.
32. It had also increased its capacity and resources within its services to address the issue, such as additional funding. It was exploring software packages available to help with timeliness when issuing EHC Plans.

Analysis

33. The investigation is limited to considering the role of the Council. We cannot consider the actions of the School as they are not in our remit to investigate.

EHC needs assessment

34. The Council received Miss X’s request in October 2023. If a council decides to issue an EHC Plan, it should do this by 20 weeks. In this case, by the end of February 2024. The Council did not do so until December 2024. This is a significant delay of 9 months.
35. I acknowledge the national shortage of EPs caused some of the delay which is outside the Council’s control. But statutory guidance is clear on timeframes and the Council failed to meet this. This is fault in the form of service failure (see Paragraph 3). There were further delays after this point which the Council has recognised as fault (see Paragraph 31). It’s acceptance of this is positive.
36. The overall delays caused significant frustration and distress for Miss X as she waited notably longer than necessary to receive a final EHC Plan and delayed her appeal rights.

Alternative provision

37. During most of the period considered, the EHC needs assessment ran parallel with Miss X’s request for AP.
38. I am considering from March to December 2024 (see Paragraph 9). At this point, Miss X requested AP from the Council. There was some delay by the Council in responding. This is poor communication. It said it would get back to her. But from the case notes, I cannot see evidence the Council made a decision about this at the time or communicated this to Miss X. There is no evidence of its decision making. This is fault, causing uncertainty and frustration to Miss X.
39. I note in its complaint response, the Council said its Section 19 AP duty did not apply as it had no medical evidence and there was a suitable place. Again, as above, there is a lack of evidence about when it decided this. It also mentioned Y having some part time education, but when this was the case, I cannot see how the Council decided the suitability of this or whether this was enough for Y and if it should make arrangements for additional education to make it full time. There is no record of it considering Y’s other individual circumstances, not just medical health, including whether the School was accessible given Y could not physically manage to attend.
40. It appeared the Council decided AP should be put in place after November 2024 which is a very late stage considering how long Y had been out of school for.
41. Therefore, I am not satisfied the Council has evidenced proper consideration or robust action from a Section 19 perspective while Y remained out of school during the period I am considering. This is fault, causing injustice with Y’s limited provision between March and December 2024. During this period, it appears Y has attended some AP provision arranged by Miss X.
42. I recognise the Council had regular meetings, with a lot of positive input from the social worker and check ins with support for Miss X. However, this did not translate into education for Y during this.

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Agreed Action

43. To remedy the injustice set out above, the Council has agreed to carry out the following actions within one month of the final decision:
• Apologise to Miss X and Y in writing to recognise the injustice caused by the faults identified (in line with our guidance on making an effective apology);
• Pay Miss X a symbolic payment of £800 to recognise the impact for the delays of the EHC needs assessment process; and
• Pay Miss X a symbolic payment of £2,200 to recognise the impact to Y for the lack of education between March and December 2024. This could be used for Y’s educational benefit.
44. The Council should provide us with evidence it has complied with the above actions.
45. The Council has taken appropriate steps to reduce delays with EHC needs assessments (see Paragraph 32). In recent previous decisions around alternative provision, we have already made recommendations for the Council to improve its services. These need time to embed so it is not necessary to make further ones.

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Decision

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

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Investigator's decision on behalf of the Ombudsman