Summary: We found fault with the Council delaying for 14 weeks outside the statutory timescales in producing Mr X’s child’s Education, Health and Care Plan. We also found fault with the Council failing to meet its complaint timescales by one week and failing to provide accessible education for Mr X’s child for five weeks. This caused frustration and inconvenience to Mr X and lost education for his child. We also found fault with the Council failing to get its own Educational Psychologist report and instead relying on Mr X’s. The Council agreed to apologise to Mr X, pay him £200 for his distress and inconvenience and £750 in recognition of his child’s missed education. The Council also agreed to reimburse Mr X for the expense he incurred in getting a private Educational Psychologist report, costing £1,200.

The complaint

1. Mr X complained the Council delayed outside the statutory timescales producing his child’s, Y’s, Education, Health and Care Plan.
2. Mr X has also complained Y has been out of full-time education since at least June 2023. Mr X says the Council named the school Y has not been attending in their Education, Health and Care Plan. Mr X wants a personal budget for provision of Education Otherwise Than At School (EOTAS) for Y.
3. Mr X has also complained the Council failed to acknowledge or respond to his complaint within the Council’s complaint timescales.

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The Ombudsman’s role and powers

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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
6. 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).
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
9. 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(i), as amended).
10. 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

11. I have investigated Mr X’s complaint about matters since 2 July 2024. I have not investigated any matters before this. This is because Mr X brought his complaint to the Ombudsman in March 2025. We could only investigate matters Mr X would have known about since March 2024 unless there was good reason to exercise our discretion to investigate matters older than this.
12. In the circumstances of this complaint, there is no good reason to exercise discretion to investigate matters before March 2024. From March 2024 to 2 July 2024, Mr X was not in contact with the Council so I have begun my investigation from the earliest date of contact with the Council on 2 July 2024.
13. The Council produced a Final EHC Plan for Y in March 2025. At this point, Mr X gained an appeal right to the SEND tribunal about the content of this EHC Plan. If Mr X disputed the content of this EHC Plan it was appropriate for him to appeal this to the SEND Tribunal. This includes the provision in Section F of the EHC Plan and the suitability of the educational placement named in Section I.
14. I have ended my investigation on 3 July 2025. This is because 3 July 2025 is when Mr X decided to Electively Home Educate Y. This forms a suitable end point for the investigation because of the significant change in circumstances.

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How I considered this complaint

15. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
16. Mr X and the Council had opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and regulations

EHC Plans

17. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. 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. 
18. 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: 

• 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. 
• 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 carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 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).  

19. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

20. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
21. Those consulted have a maximum of six weeks to provide the advice. 
22. Once the Council completes the EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
23. The Ombudsman can look at any delay in the assessment and creation of an EHC plan as well as any failure by the Council to deliver the provision within an EHC plan.

Alternative provision of education

24. 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.
25. 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)
26. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
27. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that 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)
28. 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
29. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• consider (based on all the evidence) whether to require attendance at school or provide the child with suitable Alternative Provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

30. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.
31. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child is absent for non-medical reasons. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence.
32. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Council complaints procedure

33. Under the Council’s corporate complaints procedure it says it will acknowledge a complaint to confirm receipt and provide a response within 10 working days.
34. The Council says a person can contact it to discuss their complaint should they be dissatisfied with its response. Alternatively, they can approach the Local Government and Social Care Ombudsman with their complaint.

What happened

35. In 2023/2024, Y was in Year 9 at School 1. Y experienced attendance difficulties during this academic year.
36. On 2 July 2024, Mr X contacted the Council about Y’s attendance difficulties. The Council agreed Y had met the threshold for it to intervene to provide education and explained the options available to Mr X. Mr X asked the Council to liaise with Y’s school and the Council agreed to explore medical tuition for Y.
37. Mr X agreed for Y to transfer to School 2 in July 2024. School 2 arranged to permanently enrol Y from September 2024. The Council was told about the planned moved to School 2 so decided to close the referral for medical tuition.
38. On 10 July 2024, Mr X sought an EHC Plan Needs Assessment from the Council.
39. The Council agreed to assess Y for an EHC Plan on 9 August 2024.
40. In August 2024, Mr X liaised with the Council about the waiting times for an Educational Psychologist report. Mr X asked if it would speed up the process if he got a private Educational Psychologist report. The Council told Mr X it would accept privately sourced Educational Psychologist reports but would need to check their suitability at panel. Mr X told the Council he would get a private Educational Psychologist report. The Council said once it received the private Educational Psychologist report it would consult with other professionals who would then have six weeks to respond.
41. Y started at School 2 in September 2024.
42. On 10 October 2024, Mr X got the private Educational Psychologist report and gave this to the Council. The Educational Psychologist report detailed Y’s difficulties with attending School 2. The report explained Y wanted to attend school but needed a clear and consistent plan to help attend. The report also noted that School 2 wanted to support Y to attend. By the date of this report, Y had missed 16 days of school.
43. In October 2024, School 2 liaised with the Council about Y’s attendance at school. The Council confirmed Y’s school was meeting the suggestions from the Educational Psychologist report and recommended School 2 continued to work with building up relationships with Y and to improve Y’s resilience in school.
44. The Council agreed to use Mr X’s private Educational Psychologist report as the statutory advice for Y’s EHC Plan on 8 November 2024. The Council confirmed it would now get the other relevant statutory advice.
45. School 2 provided input for Y’s EHC Plan. School 2 confirmed:
• Y was accessing education on a part-time timetable.
• Its SEND team had a plan in place to gradually integrate Y into school in line with the Educational Psychologist advice.
• It was working on building relationships with Y with key members of staff.
• It was offering support sessions for Y but Y had not yet been able to access these.
• Y was starting to make some friends in school and it did not consider online tuition would be suitable for Y.
46. From 2 December 2024, Y only attended two half-day sessions for the rest of the term and did not return to school in January 2025.
47. On 8 January 2025, Mr X told the Council he believed Y needed full-time Alternative Provision of education outside school. Mr X said he believed Y could access 30 hours of education in an environment that suited them. Mr X reiterated these comments to the Council on 15 January 2025.
48. The Council held a panel meeting to consider Mr X’s request for Alternative Provision on 27 January 2025. The panel declined Alternative Provision deciding that Y’s school should continue with the reintegration plan with the support from the EHC Plan provision.
49. Mr X queried the Council’s decision to decline Alternative Provision . The Council responded to advise the panel considered the EHC Plan provision alongside the plans and support in place from School 2 was suitable for Y to return to education in school.
50. On 3 February 2025, Mr X made a formal request for Education Otherwise Than At School (EOTAS) for Y and provided a detailed personal budget request to the Council. Mr X told the Council he had started to fund private tutoring for Y.
51. The Council considered Mr X’s request at panel but declined the request stating it needed further information about the support in place by School 2.
52. School 2 told the Council it could provide the Section F provision detailed in Y’s EHC Plan. School 2 said it has tried to support Y into school and would continue to do so but noted Mr X’s concerns about the suitability of mainstream education.
53. On 27 February 2025, the Council decided it would name School 2 in Y’s EHC Plan as it considered School 2 could meet Y’s needs. The Council decided to decline EOTAS on this basis.
54. Mr X made a formal complaint to the Council on 5 March 2025. Mr X said:
• The Council had not produced a Final EHC Plan for Y and was now outside the statutory timescales.
• He privately sourced an Educational Psychologist report for Y’s EHC Plan but the Council had still delayed production of the EHC Plan.
• He did not consider School 2 was suitable for Y and wanted EOTAS instead. Mr X said this was because Y had not been able to attend School 2 despite the school’s best efforts.
• He was privately funding education for Y which Y was responding well to.
55. On 6 March 2025, the Council produced a Final EHC Plan for Y. This Final EHC Plan used Mr X’s private Educational Psychologist report as the only Educational Psychologist input. The Council named School 2 in Section I of the EHC Plan and did not provide EOTAS or a personal budget for Y. The Council wrote to School 2 on the same date confirming the funding it would provide for Y’s EHC Plan.
56. The Council provided a complaint response to Mr X on 26 March 2025. The Council said:
• It accepted it did not complete Y’s EHC Plan within the 20-week timeframe and apologised for this.
• It had now issued a Final EHC Plan for Y and shared this with Mr X with details of his appeal rights.
• It had considered Mr X’s request for Alternative Provision for Y at panel. The panel’s decision was that School 2 was suitable education with the EHC Plan provision to reintegrate Y into education.
• It considered Mr X’s request for a Personal Budget and EOTAS but declined these because it considered School 2 could meet Y’s needs.
• The link inclusion partner would offer advice and guidance to School 2 about how to support Y.
57. Mr X held mediation with the Council about the contents of the EHC Plan and the decision to decline EOTAS and a Personal Budget. The Council agreed to put this back to panel who again declined EOTAS stating that it considered School 2 was suitable education for Y and could meet Y’s needs.
58. On 7 May 2025, Mr X asked the Council to provide Alternative Provision for Y again. The Council liaised with School 2 about the cost of tuition and agreed to increase funding for Y’s EHC Plan to cover the cost of tuition.
59. School 2 contacted the Council to advise it had offered tuition to Mr X for Y but Mr X declined this in its current format. School 2 told the Council Mr X wanted to continue with privately funded tuition and for tuition on offer by School 2 to focus on Maths and English only but with increased hours.
60. The Council contacted Mr X to advise it was working with School 2 to implement Y’s EHC Plan and provide a bespoke educational package including face-to-face tuition and access to support. The Council said it was aware that Mr X had declined offers of education for Y but School 2 was continuing to try to work with Y. The Council said it considered the tuition on offer through School 2 was suitable education for Y.
61. The Council told School 2 it considered the tuition arrangements it had agreed with School 2 were suitable and should be implemented. The Council said Mr X may make any other arrangements he saw fit but it should still provide the education it considered suitable. The Council said the next step was to arrange a meeting between Mr X, School 2 and the Council to discuss a way forwards.
62. In June 2025, School 2 invited Mr X to a meeting to discuss a way forwards with Y’s education.
63. On 23 June 2025, Mr X told School 2 he wanted to remove Y from School 2. Mr X told the Council on 30 June 2025 he had decided to off-roll Y and Electively Home Educate Y. The Council agreed to remove Y from enrolment and completed this on 3 July 2025.

Analysis

EHC Plan assessment delays

64. The Council had six weeks to decide whether to complete an EHC Plan Needs Assessment following Mr X’s application on 10 July 2024. This meant the Council had until 21 August 2024 to make its decision. The Council decided to assess Y on 9 August 2024. The Council met the statutory timescales and I do not find fault.
65. The Council had 20 weeks (until 27 November 2024) to decide if it should produce an EHC Plan and send Mr X the Final EHC Plan. It took until 6 March 2025. The Council delayed by 14 weeks outside the statutory timescales. This delay was fault.
66. This fault caused Mr X frustration and inconvenience through needing to chase the Council. The Council should apologise to Mr X and pay him £200 for the avoidable frustration and inconvenience its delays caused him. I have addressed the impact on Y in paragraphs 77 to 79.

Educational Psychologist report

67. Regulation 6(1) of The Special Educational Needs and Disability Regulations 2014 (The SEND Regulations 2014) outlines a council must obtain Educational Psychologist advice as part of a child’s EHC Plan Needs assessment. A council may rely on a privately sourced Educational Psychologist report.
68. While Mr X told the Council he would be paying for this report, this did not mean the Council could not get its own. The Council said it could not get an Educational Psychologist report in time. This was fault.
69. Had Mr X not fulfilled the Council’s statutory duty, it would have needed to get its own EP report. So, Mr X paid because of the Council’s fault. It should reimburse Mr X for the cost he incurred of £1,200.

Access to education

70. Mr X told the Council about Y’s absence from school in July 2024. This meant the Council had a duty to consider its Section 19 duty and decide how it should provide education for Y. The Council had to decide what action to take in six working days. Mr X told the Council he had arranged for Y to transfer to School 2. The Council decided not to proceed with a medical tuition assessment, as it originally thought necessary, because School 2 presented a suitable opportunity for Y to access school. This was a decision the Council was entitled to make and I do not find fault.
71. Neither Mr X nor School 2 contacted the Council again until 10 October 2024. At this time, Mr X submitted the Educational Psychologist report to the Council confirming Y’s attendance issues and the school records show Y had missed 16 days of education in the academic year.
72. The Council responded to this contact by discussing Y’s access to education with School 2. The Council confirmed the actions with School 2 it was taking and recommended it continued to use the suggestions from the Educational Psychologist report to integrate Y. The Council decided School 2 was suitable education and provided advice to School 2 about its reintegration plans. I do not find fault with the Council.
73. The Council kept this under review by using School 2’s contribution to Y’s EHC Plan application in November 2024. School 2’s input confirmed Y was accessing education through a part-time timetable with a plan to gradually integrate them. School 2 also confirmed it did not consider online education was suitable for Y.
74. While Y stopped attending school almost entirely from 2 December 2024, neither School 2 nor Mr X told the Council about this decline in attendance until 8 January 2025.
75. From 10 October 2024 to 8 January 2025, the Council considered Y’s access to education, liaised with Y’s school to form a reintegration plan and supported the use of a part-time timetable to integrate Y into education. The Council has made decisions it was entitled to make, and so I do not find fault.
76. The Council considered Mr X’s request for Alternative Provision at panel on 27 January 2025. The Council maintained its position that School 2 was suitable and accessible education for Y. However, the panel made this decision on the basis that EHC Plan provision would be in place to support Y. The Council was again entitled to make this decision. However, when it did so, Y did not have an active EHC Plan and would not have one until 6 March 2025 because of the Council’s delays. This meant by the Council’s own decision making, Y did not have access to suitable education from 27 January 2025 to 6 March 2025; this was fault resulting in lost education for Y.
77. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
78. I have considered Y’s individual circumstances and our guidance on remedies. The Council should pay Mr X £1,950 per term for Y’s missed education caused by the fault of the Council; this totals £750 for Y’s five weeks of missed education.
79. Once the Council produced a Final EHC Plan for Y on 6 March 2025, it again said School 2 was suitable and accessible education for Y. As part of this decision making, the Council considered at panel Mr X’s application for EOTAS for Y and declined this. Following production of the EHC Plan the Council reiterated to Mr X in its complaint response that School 2 was suitable education in conjunction with the EHC Plan provision. The Council was consistent in its decision making; I do not find fault.
80. In May 2025, the Council liaised with School 2, created a package of tuition for Y with School 2 and increased School 2’s budget for Y’s education to accommodate this. The Council acted proportionately and in line with the relevant guidance and legislation and I do not find fault. The fact that Mr X did not agree with the Alternative Provision on offer, and ultimately decided to Electively Home Educate Y, was a decision he was entitled to make. However, I do not find the Council at fault for failing to provide education in these circumstances. Once Mr X decided to Electively Home Educate Y, the Council’s responsibility for Y’s education ended.

Complaint handling

81. The Council had 10 working days to provide a complaint response to Mr X in line with its complaint handling process. Since Mr X made his complaint on 5 March 2025, the Council had until 19 March 2025 to provide a complaint response.
82. The Council provided Mr X with a complaint response on 26 March 2025; this was one week outside the complaint handling timescales and was fault. The Council should apologise to Mr X for frustration caused by this delay.

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Action

83. Within one month of the Ombudsman’s final decision the Council will:
• Provide an apology to Mr X and pay him £200 for the avoidable frustration and inconvenience caused to him through its 14-week delay outside the statutory timescales in producing Y’s Education, Health and Care Plan.
• Reimburse Mr X for the cost incurred, £1,200, in getting the privately sourced Educational Psychologist report the Council relied on when producing Y’s Education, Health and Care Plan.
• Provide an apology to Mr X for the frustration caused through the failure to meet its complaint handling timescales.
• Pay Mr X £750 in recognition of Y’s missed educational provision totalling five weeks caused by the fault of the Council.
84. The Council should provide us with evidence it has complied with the above actions.

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Decision

85. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman