Summary: We found fault by the Council on Mrs Y’s complaint about its failure to process her request for an Education, Health and Care plan within statutory timescales. It missed the statutory time limit by 39 weeks. It failed to consider whether it was appropriate to fund her daughter’s special needs it was aware of when she started home education. It also failed to consider its section 19 duties sooner, advise her and consider education other than at school sooner, or give her information about the consequences of home educating her. The Council agreed to send a written apology, pay £397.06 for the injustice caused by its failures, provide an Action Plan showing how future assessments will be completed within statutory timescales, and will ensure relevant officers consider section 19 duties and education other than at school during assessments where children are out of school. It will ensure it gives parents relevant information and improve communication with them.

The complaint

1. Mrs Y complains about the Council failing to:
1. process her request for an Education, Health and Care (EHC) needs assessment of Z, her daughter, and issue an EHC plan, within statutory timescales;
2. arrange alternative education for her, particularly from November 2024, when she stopped attending school;
3. agree to reimburse the education and counselling provision she paid; and
4. properly and promptly communicate with her about what was happening.
2. As a result, her daughter lost education, was without an EHC plan for longer than she should have, and she had the financial cost of paying for alternative provision, all of which caused her and her family a great deal of unnecessary stress

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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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How I considered this complaint

6. I considered evidence provided by Mrs Y, the notes I made of our telephone call, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs Y and the Council. I considered their responses.

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What I found

Law and guidance: EHC plans process

7. 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 First-tier Tribunal (the tribunal) or the council can do this. 
8. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014 (the Regulations) which say 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent, or young person, information about their right to appeal to the tribunal.
• 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 was requested, until the final EHC plan was issued, must take no more than 20 weeks (unless certain specific circumstances apply).

9. The Code states there are ‘exceptional circumstances’ where it may not be reasonable to expect councils to comply with the 20 week time limit. This would include: appointments missed by the child; the child is absent from the area for a period of at least 4 weeks; exceptional personal circumstances affecting the child or parents; the closure of the educational institution for at least four weeks which may delay the submission of information from the school.
10. Some children and young people will move between local authority areas while they are being assessed for an EHC plan. The new council should decide whether it needs to carry out an EHC needs assessment themselves. It should take account of the fact the previous council decided to carry one out when making its decision. If it decides to do so, it should use the information already gathered as part of its own EHC needs assessment. (paragraph 9.162 of the Code)
11. The Code also says that home education must be suitable for the child’s age, ability, aptitude, and Special Educational Needs. Councils should work in partnership with, and support, parents to ensure that the SEN of these children are met where it already knows the children have SEN or the parents have drawn the child’s special needs to its attention. Councils should fund the SEN needs of home-educated children where it is appropriate to do so. (paragraph 10.30 of the Code)

Alternative provision

12. 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.
13. 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)
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude, and to any special educational needs he or she may have. (Education Act 1996, section 19(6))
15. The courts have considered the circumstances where the section 19 duty applies. Case law established 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)

Education otherwise than in a school (EOTAS)

16. If a school setting, for example, is not appropriate for a child or young person, and the parent decides not to home educate, a council can arrange for any special educational provision they require to be delivered somewhere else and set this out in an EHC plan. The Council would be responsible for continuing to secure and fund that provision. (Children and Families Act 2014, section 61)

Personal Budgets

17. A personal budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC plan. One way that councils can deliver a personal budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC plan themselves.
18. A child’s parent or the young person has the right to request a personal budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC plan. They may also request a personal budget during a statutory review of an existing EHC plan.
19. The final allocation of a personal budget must be sufficient to secure the agreed provision specified in the EHC plan and must be set out as part of that provision.
20. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
21. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

What happened

22. Mrs Y is unhappy with the time taken for the Council to carry out the EHC needs assessment of her daughter, Z, who was 14 years old at the time she made her request. Z can experience high levels of stress and anxiety when she feels unsupported. This affects her ability to regulate her emotions. She has complex social, emotional, and mental health difficulties which affected her ability to attend and engage at school.
23. Mrs Y complained the school provided no support to Z and ‘off-rolled’ her. ‘Off-rolling’ is the practice of removing a pupil from the school roll without using a permanent exclusion when the removal is mainly in the interests of the school rather than the best interests of the pupil.
24. She argued her daughter might not have missed so much education had the Council completed it within statutory timescales. She also argued that because of the delays, she had to pay for Z’s private tuition but could not pay for all the sessions she needed. She wonders whether Z might have also gone on to another setting rather than being removed from school. Mrs Y considers the Council should pay for the education she missed since November 2024.
25. Below I set out the key dates showing what happened:

2023

26. In November, Mrs Y lived within the administrative area of another council. On 27 November, she applied to it for Z to have an EHC needs assessment. This was because she was unhappy with the lack of support from her school and believed she needed an EHC plan. The request explained Z had been suspended several times and missed a lot of classroom work. The school struggled to help Z because of funding and available staff.
27. The first council had to tell Mrs Y whether it would carry out the assessment within six weeks (8 January 2024) of receiving the request. It had to issue the final EHC plan within the 20 week statutory deadline (15 April 2024).

2024

28. Towards the end of January, Mrs Y and her family moved before the completion of the assessment by the first council. Shortly afterwards, she said she told both councils about the move. She claimed between January to April, she spent hours chasing the Council to ask what was happening with the EHC needs assessment.
29. On 13 March, the Council received the EHC needs assessment request from the other council. It had not received one from Mrs Y directly. The assessment had not been completed but some information was gathered. The same day, the Council sent a request for an educational psychologist assessment. This was needed for the EHC needs assessment.
30. I assume the first council told Mrs Y of its decision to do the assessment because it had gone on to gather information for it. The Council now had 20 weeks to complete the assessment and issue the final EHC plan (31 July).
31. In April, the Council contacted the school which referred to Z going through the behaviour system. There was also contact with Mrs Y. There was no SEN Coordinator plan in place, and the school would put in remote learning.
32. Mrs Y claimed the school ‘off-rolled’ Z causing her to miss a week of school.
33. There was further contact with Mrs Y in July about suspensions and actions she should discuss with the school. These included discussing a part time timetable and alternative provision.
34. An educational psychologist was allocated the case on 12 August. The same month, Mrs Y was given advice about options which included looking at other schools or her deciding to home educate. The Council gave the school extra funding to help support Z. The school made a referral to the educational psychology service requesting support and strategies for her needs.
35. Mrs Y said she chased the Council again in September when Z went back to school about the EHC needs assessment as she was still struggling.
36. At the start of November, Z was suspended. Mrs Y said she asked about options but said she received no support.
37. On 11 November, the Council received the educational psychologist’s advice. This meant four months of the overall delay with the EHC needs assessment was due to waiting for the educational psychologist’s advice.
38. Later the same month, Mrs Y removed Z from school. She was unhappy with the time the Council took to carry out the EHC needs assessment as she believed Z needed an EHC plan. Z had struggled at school for some time. In response to our enquiries, the Council said the expectation was for her to assume full financial responsibility for Z’s education.
39. Mrs Y enrolled Z onto online tuition courses which she funded herself.

2025

40. The Council issued the draft EHC plan in January, about seven weeks after receiving the educational psychologist advice.
41. The same month, Mrs Y complained to the Council about its actions. In her complaint, she said she was not told about EOTAS until recently and should have been told it was an option sooner. She claimed it was only after complaining that the Council began to contact her about how Z was doing. She also wanted the Council to reimburse the online tuition costs she had paid already which amounted to £922.06.
42. Under stage 1 of its complaints process, the Council accepted it failed to carry out the EHC needs assessment within statutory timescales. The main reason for this was waiting for the advice from the educational psychologist. This was because of high numbers of EHC needs assessment requests received and a reduced workforce. It refused to reimburse her the tuition costs she incurred because Mrs Y decided to remove Z from school. Once the EHC needs assessment was completed, it would offer £100 a month for delay beyond the statutory 20 week timescale.
43. In her response to the draft EHC plan, Mrs Y asked for a meeting which was set for 3 February. At this meeting the EHC plan and an EOTAS package were discussed at Mrs Y’s request by a multi-agency panel to decide: whether to consider the EOTAS request; to consult with schools to see whether the legal criteria was met; to arrange a further panel discussion about the EOTAS package in principle; to have liaison between the case manager and parent to agree the EOTAS package provision; the need for senior management agreement of the package and associated costs.
44. The panel considered Mrs Y’s request for EOTAS. It decided the threshold was not met. It agreed the section 19 duty would be met through the provision of tuition and catch up sessions. Provision was already in place since Mrs Y began to home educate Z. The Council agreed to make direct payments from 20 February. This covered all the online school sessions amounting to £11,475 a year.
45. In March, at stage 2 of its complaints procedure, the Council noted interim section 19 provision had already been agreed and there was consultation with settings for Z. This meant it could not yet decide the issue of EOTAS which would need to go back to the panel when this was clarified.
46. In early April, the Council calculated the back payment from 20 February 2025. The second draft EHC plan was issued on 15 April as the EOTAS steps were completed. The final EHC plan was issued on 30 April.
47. Since March, the Council agreed to pay for Z’s online course, but Mrs Y says communication was still poor.
48. In May, the Council warned Mrs Y it needed her to contact it as it had concerns Z may not have access to full time suitable education. Mrs Y sent evidence of Z’s online attendance.
49. In response to our enquiries, the Council said:

• there was no record of the school ‘off-rolling’ Z in April 2024.
• there were no records made by the agency worker who was involved with the case during the EHC needs assessment process.
• Z’s levels of absences were such it could not intervene unless the school said there was a need. As the school had raised no concerns, the Council was not monitoring provision.
• it made changes to improve the timeliness of educational psychologists’ advice, but these changes took some time to get established and for resulting improvement to be seen. By the time they did, it had received the advice from the educational psychologist.
• its Inclusion Service advised Mrs Y of other options such as looking at other schools or deciding to home educate Z if she considered the school could not meet her needs

My findings

Complaint a): EHC needs assessment process

50. I found the following on this complaint:
1. The Council received Mrs Y’s request for an EHC needs assessment from the previous council on 13 March 2024. Under the Code, the Council had to decide whether it needed to carry out the assessment. When reaching this decision, it had to take account of the fact the first council decided to do one.
2. The Council decided to do its own assessment but could use the information already gathered by the previous council. Under the Code, I am satisfied this meant the statutory timescales started afresh. As the Council asked for educational psychologist advice the same day it received the request from the previous council, I am satisfied it made the decision to carry one out within six weeks of receiving the request.
3. From receiving the request, the Council had 20 weeks (31 July 2024) to issue the final EHC plan. The final EHC plan was issued on 30 April 2025. It was fault not to issue the EHC plan within the 20-week period. I am satisfied it was fault, and not a service failure, because the Council provided no evidence showing what steps it took to find an alternative educational psychologist.
4. The Council went 39 weeks beyond the 20-week deadline. Of the 39 weeks, about 14.5 weeks of the delay (4 months) was waiting for advice from the educational psychologist.
5. This meant there was about 24.5 weeks of further delay after the Council received this advice.
6. I am satisfied this delay caused Mrs Y and Z an injustice. They lost the opportunity to have the EHC plan provision in place sooner. It caused distress as it caused uncertainty and frustration.

Complaint b): educational provision

51. I found the following on this complaint:
1. I considered what provision was made for Z from the period when the educational psychologist advice was received in November 2024, to when the Council issued the final EHC plan in April 2025. This was a period of almost five months and amounts to about 1.5 school terms.
2. I am satisfied there was evidence the Council provided additional funding to the school to help meet Z’s needs for the term covering November 2024.
3. In November, Mrs Y decided to remove Z from the school. The Code (paragraph 10.30) says councils should fund support for the Special Educational Needs of home educated children where appropriate to do so.
4. I have seen no evidence of the Council considering whether it was appropriate to fund the support for Z’s needs at the time when Mrs Y decided to home educate her. I am satisfied this caused Mrs Y an injustice as she lost the opportunity to have this considered sooner.
5. Nor was there evidence to show it considered its duties under section 19 before February 2025. I consider this was fault. I am also satisfied this caused Mrs Y and Z an injustice. This is because Mrs Y had to arrange and pay for the tuition herself before the Council decided to meet the cost.
6. The Council also considered whether it needed to provide an EOTAS package for Z in February. It decided the criteria for EOTAS had not been met but would look at this further once consultations with schools, for example, had happened. After these further steps were taken, the Council issued a draft and then final EHC plan with EOTAS.
7. I have seen no evidence of the Council advising Mrs Y about EOTAS. It considered it in February 2025 when Mrs Y asked about it. I consider the failure to inform her about EOTAS sooner, and consider this sooner, was fault. I am satisfied this caused her injustice. She lost the opportunity to consider this sooner, to have raised it with the Council sooner, and for the Council to have considered it and started looking at whether the criteria was met sooner.

Complaint c): reimbursement

52. I found the following on this complaint:
1. Although the Council said there was an expectation Mrs Y would assume financial responsibility for Z’s education when she removed her from school, there was no evidence of it explaining this, or the consequences, to her. There was no evidence showing the Council explained she would be responsible for not only arranging Z’s education but also paying for it.
2. I consider this was fault. I am satisfied this caused Mrs Y an injustice as she had to meet the cost of the online tuition herself. She lost the opportunity to make an informed choice about removing Z from school.

Complaint d): poor communication

53. There were communication failures with Mrs Y as already noted. For example, she was not told about EOTAS or the consequences of deciding to home educate Z, for example.
54. I consider these failures amount to fault and caused Mrs Y an injustice as already noted.

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Action

55. I considered our guidance on remedies and the online provision Z received since November 2024. I also took account of the payment of £1,125 the Council made to Mrs Y for the failings it identified at stage 1 of its complaints procedure.
56. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs Y a written apology for the injustice caused by its failure to: complete the EHC needs assessment within statutory timescales; consider whether it was appropriate to fund the support for Z’s special needs, of which it was aware, when she started being educated at home; consider its section 19 duties sooner; advise her about EOTAS sooner; consider EOTAS sooner; provide her with information about the financial consequences of home educating Z; communicate properly with her.
2. Pay £397.06 (£1,522.06 less £1,125) to Mrs Y which was calculated as follows:

• £400 (£100 x 4 months) for the injustice caused by the delay receiving the advice from the educational psychologist;
• £922.06 reimbursement of online tuition Mrs Y paid between November 2024 and February 2025, provided she produces evidence showing payment of this cost;
• £200 for the injustice caused by the identified fault; less
• £1,125 the Council has already paid.
3. Provide an Action Plan showing how it will ensure all EHC needs assessments are completed within statutory timescales in future.
4. Take steps to ensure relevant officers are aware of, and promptly consider, whether it is appropriate to fund the support needs of children being home educated where it is aware of their SEN/special needs.
5. Act to ensure relevant officers are aware of, and promptly consider, the need to exercise section 19 duties when children are being assessed for an EHC plan who are, or have been, removed from school to be home educated.
6. Remind relevant officers of the need to consider EOTAS at the earliest opportunity for children with special needs who are removed from school.
7. Remind relevant officers of the need to provide parents of children with special needs who are removed from school, with information about EOTAS at the earliest opportunity.
8. Remind relevant officers of the need to provide full information to parents wishing to home educate their children of the consequences of their decision, including financial.
9. Review how it can improve communication with parents in similar positions to Mrs Y and draft an Action Plan showing how improvements will be applied.

57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. I found the following on Mrs Y’s complaint against the Council:

• Complaint a): fault causing injustice;
• Complaint b): fault causing injustice;
• Complaint c): fault causing injustice; and
• Complaint d): fault causing injustice.

59. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman