Summary: Mr X complained the Council delayed arranging alternative provision and support for his child, Y, when they could not attend school. He said this caused Y to miss out on a suitable education. We found the Council at fault for not providing a suitable education for Y and for delaying their Education, Health and Care needs assessment which caused injustice to Y and their family. The Council has agreed to apologise and make a payment to Mr X. The Council has also agreed to make changes to improve its service.

The complaint

1. Mr X complained the Council delayed contacting Alternative Provision (AP) providers after it issued his child, Y’s Education, Health and Care (EHC) Plan. He said this meant Y went without a suitable education or support for three months.
2. Mr X also complained about poor communication by the Council.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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

How I considered this complaint

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. Mr 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

Law and guidance

EHC needs assessments and plans

9. A child or young person with Special Educational Needs (SEN) 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.
10. 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 SEND Regulations 2014. It says 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 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 (unless certain specific circumstances apply).

11. 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).

Special educational provision

12. 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).
13. We expect councils to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative education provision

14. 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.
15. 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)
16. We have issued 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. Out of school, out of sight? published July 2022
17. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include using tutors or parental support groups. Elective home education is distinct from alternative education provided by a council. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

What happened

18. In January 2024 Mr X asked the Council to carry out an EHC needs assessment for Y.
19. In April 2024 Y’s parents decided to withdraw them from school and electively home educate them until the Council issued an EHC Plan.
20. In September 2024 Y started a part-time course. This was for two and a half days per week.
21. The Council issued Y’s final EHC Plan in December 2024. The EHC Plan did not name a school. Section F of the Plan stated Y would receive 10 hours per week of teaching, which included practical and physical activities alongside English and maths. They were also entitled to six hours per week of 1:1 support from a teaching assistant.
22. Mr X complained to the Council in January 2025. He said it had delayed contacting AP providers which meant Y was not receiving the education as set out in their EHC Plan.
23. The Council responded to Mr X’s complaint and accepted that it delayed in finding AP providers for Y and it had not always responded to his messages quickly enough. It said the delay was due to the Christmas period. It also said it had to chase responses from AP providers who had not responded to its referrals.
24. The Council’s records show it sent referrals to AP providers in late January, February and March 2025.
25. In March 2025 Y started receiving some of the education provision in their EHC Plan.

My findings

EHC plan delays

26. Y’s parents applied for an EHC Plan in January 2024. As explained in paragraph 10, the Council should have issued Y’s EHC Plan within 20 weeks of this date. This means Y’s EHC Plan should have been issued in late May 2024. The Council did not issue it until mid-December 2024, which was a delay of just over six months.
27. As part of our investigation, we asked the Council why there was a delay in issuing Y’s EHC Plan. The Council told us this was because more people were asking for EHC needs assessments and there was a shortage of Educational Psychologists (EPs).
28. There is a reported national shortage of EPs. When a council cannot meet statutory timescales because of circumstances beyond its control, we would still find fault. As explained in paragraph four of this decision, we consider this to be service failure.
29. Failure to issue the EHC Plan on time was fault by the Council. The delay in issuing the EHC Plan caused uncertainty for Y and their family. They were waiting for the EHC Plan decision so they could find out what options were available to end elective home education for Y and get them back into education.
30. Our approach in cases where there has been a delay to an EHC needs assessment caused by a shortage of EPs is to recommend a remedy payment of £100 per month of delay. This is to remedy any uncertainty and frustration caused to the child or young person and their family.
31. In Y’s case, the total delay was six months and therefore the appropriate symbolic financial remedy would be £600.
32. Where we find fault by a council, we can also recommend changes to improve how the council delivers its services to prevent the same issue happening to others.
33. The Council has made public its annual SEN update it produced in January 2025. This document explains the Council has a recovery plan to address the backlog of EHC needs assessments. We have therefore not made any service improvement recommendations on this point, but the Council has agreed to produce and share with us a formal action plan based on its recovery plan. We will then monitor the effectiveness of the Council’s actions through our casework.

Failure to secure special educational and alternative education provision

34. The Council told Mr X it accepted it delayed arranging the special educational provision written in section F of Y’s EHC Plan, which was to be delivered by AP providers.
35. In response to our enquiries, the Council told us it had not provided Y with any education between December 2024 and March 2025. This was fault as the Council had a duty to provide Y the education that was in their EHC Plan.
36. The Council issued the EHC Plan in mid-December 2024 but did not send the first referral to an AP provider until the end of January 2025. Although the Christmas period may account for some delay, it does not explain the whole delay.
37. The Council should have started contacting AP providers when it was writing the EHC Plan, so the provision could begin without delay once the final EHC Plan was issued.
38. Y did not start their alternative education provision until March 2025. This caused Y injustice because it meant they went without the education provision as written in their EHC Plan for three months.
39. Mr X told us that although Y did not receive all the provision in their EHC Plan in March 2025, they received as much as they were able to engage with at the time, due to their needs. The Council’s records show that Mr X declined some offers of more education and support in April 2025 because Y would struggle to engage with them. Therefore, there is no fault by the Council that Y received most of the support written in their EHC Plan, but not all of it.
40. During this time, Y was attending a part-time course at college and was therefore receiving some education, and so the injustice caused to Y was limited.
41. Our guidance on remedies explains that where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In Y’s case, considering the factors above, £900 for the term is appropriate to remedy any loss of education and support.

Communication

42. The Council accepted it delayed some of its responses to Mr X and it apologised to him.
43. An apology is sufficient to remedy any injustice caused to Mr X by the Council’s failure in communication, and therefore it would not be proportionate to recommend any further remedy on this point.

Back to top

Action

44. Within one month of our final decision, the Council will:
1. apologise to Mr X and Y for the injustice caused to them by the failings identified during this investigation. This apology should be in accordance with our guidance for making an effective apology;
2. pay Mr X £600 to acknowledge the uncertainty caused to him and Y by the delays in sending the final EHC Plan; and,
3. pay Mr X, on behalf of Y, £900 to acknowledge the loss of suitable education between January 2025 and March 2025.
45. Within three months of our final decision, the Council will:
1. share our focus report Out of school, out of sight? with relevant staff who may deal with parents and schools to remind them of best practice when a child of compulsory school age is not attending school full-time; and,
2. create and share with us a formal action plan, based on its recovery plan, which shows how it will address the EHC needs assessment delays caused by EP shortages.
46. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

47. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman