Summary: We found fault by the Council on Mrs Y’s complaint that it failed to follow statutory timescales following a request for it to carry out an Education, Health and Care needs assessment for her son. It also failed to provide her son with appropriate education when he was on a reduced timetable or had been suspended. The Council agreed to send a written apology for the failings, pay £1,400 for the injustice caused by not completing the assessment within statutory timescales, pay £7,200 for lost alternative provision, remind officers of the need to consider its duties for children not attending school, and ensure it has processes in place to monitor and review the progress of these children, especially where it decides to do an assessment.

The complaint

1. Mrs Y complains about the Council failing to:
1. comply with statutory timescales following her request for it to do an Education, Health and Care (EHC) needs assessment of her son and its decision to issue an EHC plan; and
2. ensure he was provided with appropriate education during periods of suspension from school and when he was on a reduced timetable.
2. As a result, this caused her and the family a great deal of stress and upset, her son has not received the provision he needs, he has lost education and remained in an unsuitable school.

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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. 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.
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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How I considered this complaint

7. I considered evidence provided by Mrs Y, 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 policy

8. A child or young person with special educational needs may have an 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. 
9. 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).

10. 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.
11. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

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 they may have. (Education Act 1996, section 19(6))
15. The education provided by the council must be full-time unless the council decides 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)
16. 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’)
17. The courts considered the circumstances where the section 19 duty applies. Case law states 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)

What happened

18. Mrs Y has a son, Z, whose EHC plan was not issued within the statutory timescales. She complained he had been on a reduced timetable over a year and missed education and provision under his EHC plan. While she accepted Z had been at school three hours a day, the reality was he only lasted there about 30-60 minutes each time. He had several suspensions and been restrained on different occasions.
19. In December 2023, the Council received a request for it to do an EHC needs assessment of Z. The Council was made aware of Z’s reduced timetable.
20. In January 2024, the Council agreed to assess him. It sent letters to professionals for their assessment reports which it needed by the end of February. The Council was unable to tell her whether it would issue an EHC plan because it had to wait for the educational psychologist’s assessment report.
21. In October, Mrs Y made a formal complaint to the Council about the delays and missed provision.
22. In November, the Council sent her its stage 1 response under its complaints procedure. It upheld her complaint and told her about the problems getting an educational psychologist’s assessment. This was because of a national increase in demand of them for this type of assessment and a national shortage of educational psychologists. It explained what action it was taking to resolve this problem and would update her every four weeks about progress. When a decision was made on the assessment, it would then consider offering her a financial remedy. Mrs Y asked for her complaint to go to the next stage.
23. In December, the Council sent her its stage 2 response again upholding her complaint. It again apologised for the delays. She was told Z was a priority and would be assessed by an educational psychologist by the end of January 2025.
24. The same month, an officer told her MP that the school had been told to refer Z to the Social, Emotional and Mental Health Inclusion team while waiting for the assessment. The referral had been done in November.
25. The educational psychologist assessed Z in January 2025. The Council accepted this was 48 weeks and six days over the statutory time limit.
26. The following month, a multi-agency panel agreed to issue an EHC plan. The Council accepted from the date it received the request for the EHC needs assessment, 58 weeks had now passed from the 20 week time limit when it was finally completed. It offered Mrs Y £1,100 for the delays (£100 for each month of delay). Mrs Y was unhappy with this amount because of the amount of education Z lost.
27. In March, the Council offered a further £6,000 (£2,000 a term missed education x 3 terms) for the delay and for the education he lost. The total amount now offered was £7,100. It sent her the draft EHC plan and consulted six schools about a placement.
28. His final EHC plan was issued in May which named his current school. The Council issued a second final EHC plan naming a different school following its response.
29. In response to our enquiries, the Council explained:

• There was an unprecedented increase in the number of EHC needs assessment requests which caused an increased demand for educational psychologist advice;
• It contracted with agencies to supply locum educational psychologists;
• It prioritised communication between the educational psychologist team and Special Educational Needs Statutory Assessment and Provision team and improved communication processes;
• It introduced an online EHC needs assessment ‘status check’ which allows parents to check the status of an application;
• Accepted the problem with delays has not yet been fully resolved but it is treating this as a priority;
• It accepted it had not given appropriate consideration or action to its section 19 duty;
• It also accepted it could have provided more robust intervention to Z and the school while the EHC needs assessment was pending; and
• There was an Executive board meeting in July which received an update about educational psychologists and resources/funding.

My findings

30. I found the following on this complaint:
1. The Council received the request for an EHC needs assessment on 11 December 2023. It had 6 weeks (22 January 2024) to notify Mrs Y of its decision to either carry out the assessment or not to do one. It told her of its decision to carry one out on 18 January. I am satisfied there was no fault by the Council on this part of the complaint as this was done by the statutory time limit.
2. The Council then had to gather information for the assessment and decide whether it would issue an EHC plan. As the Council decided to issue an EHC plan, it had 20 weeks (29 April 2024) from receiving the initial request to do so. The final EHC plan was issued 10 June 2025. This was 58 weeks (14 months) after it should have been issued. The reason for the delay was due to the shortage of educational psychologists. We considered this delay was a service failure having taken into account the efforts made to find alternative educational psychologist advice.
3. I am satisfied this caused Mrs Y an injustice. This was because it caused uncertainty, frustration, and there was the lost opportunity to have it decided sooner.
4. I am satisfied the Council accepted it could have done more when alerted to Z’s missed educational provision than it did and acted more robustly to help him. I note that the period covered includes, the Summer term 2024, the Autumn term 2024, the Spring term 2025 and the Summer term 2025 (0.6: from 20 April-10 June).
5. I am satisfied this caused Mrs Y and Z an injustice. This is because Z lost educational provision, lost the opportunity to have provision put in place, all of which caused uncertainty, frustration, and distress.

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Action

31. I considered our guidance on remedies along with the Council’s offer already made to remedy the injustice caused. I also took account of Z’s needs, his age, and the period involved, for example.
32. The Council agreed to take the following action within four weeks of the final decision on this case:
1. Send Mrs Y a written apology for the injustice caused by the failure to: issue the final EHC plan within statutory time limits; ensure alternative provision was considered and provided.
2. Pay £1,400 (£100 x 14 months) to Mrs Y to recognise the frustration and uncertainty caused by failure to complete the statutory assessment process within 20 weeks.
3. Pay £7,200 (£2,000 x 3.6 terms) to Mrs Y for the failure to consider and make alternative provision while her son struggled to attend school.
4. Remind relevant officers of the need to consider whether the section 19 duty is triggered for children who are not attending school full time and are struggling with attendance.
5. Ensure it has processes in place to monitor and review the progress of children who are not attending school, or are on part-time timetables, especially where it decides to proceed with an EHC needs assessment.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I found fault on Mrs Y’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman