Summary: We found fault with the Council’s delay in issuing Ms X’s child, Y’s Education, Health and Care (EHC) Plan and failure to consider whether to put alternative provision in place. This caused Ms X and Y uncertainty and avoidable distress. The Council agreed to apologise to Ms X and Y for the delay and failure to consider its duty and make a payment to remedy the injustice. We did not find fault with the Council for failing to provide alternative provision for Ms X’s child.

The complaint

1. Ms X complained the Council delayed carrying out Y’s Education, Health and Care (EHC) needs assessment. She also said the Council failed to provide alternative education when Y stopped attending school in July 2024.
2. Ms X said the delay meant Y had no school place when starting secondary school and missed out on education. She wants the Council to arrange full-time specialist provision for Y and pay compensation for the uncertainty and distress caused by the delays and the failure to provide alternative education.

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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. 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)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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)
8. 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

9. 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)
10. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
11. Ms X complained the Council failed to provide alternative education for Y when they stopped attending school from September 2024. However, Y’s absence was connected to the family’s disagreement with the school the Council proposed and later named in Y’s EHC Plan issued on 26 November 2024. I therefore cannot investigate Ms X’s complaint about the lack of alternative provision from that date onwards, as the named school became appealable when the Council issued the EHC Plan. Ms X exercised her right of appeal to the Tribunal in January 2025.

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How I considered this complaint

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plan 

14. 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 Tribunal or the council can do this. 

Timescales and process for EHC assessment 

15. 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);

The First- tier Tribunal and appeal rights

16. 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.
17. There is a right of appeal to the Tribunal against the school or placement specified in their EHC Plan.

Alternative provision - General section 19 duty

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. 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)

Inability to attend due to ill health

20. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
21. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
22. 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.

What happened

23. In January 2024 Ms X contacted the Council and requested an Education, Health and Care (EHC) needs assessment. The same month, the Council agreed to assess Y and requested advice from an Educational Psychologist (EP).
24. In May 2024 the Council received the EP report and decided to issue Y an EHC Plan.
25. In July Ms X informed the Council she considered a mainstream educational setting for Y unsuitable. The same month Y stopped attending school due to anxiety but was able to complete primary school meaning they would transition to secondary school starting in September 2024.
26. In August the Council issued Y’s draft EHC Plan, at this stage the plan did not name a placement in Section I.
27. In September 2024, the new school year started and Y remained out of school. The Council had not issued Y’s final EHC Plan yet naming a school in Section I however Y was on roll at the local mainstream secondary school, M.
28. In September and October the Council consulted with schools to finalise Y’s EHC Plan. Amongst them it contacted a specialist school, S which Ms X visited earlier that year and considered would be a good fit for Y. Although school S could meet Y’s needs, it had no available place for the 24/25 academic school year. The Council also consulted school M which stated it could not meet Y’s needs.
29. Ms X informed us that Y did not start at school M in September 2024. She told the Council on 10 September 2024 that Y was without a school placement and reiterated in October that Y was without any education. Ms X said she would not send Y to a mainstream secondary school as they had previously struggled in a mainstream primary setting. She said she would not force Y to attend school M, given the school had confirmed it could not meet Y’s needs.
30. Following its consultation process, the Council indicated in October it was likely to name school M in Y’s EHC Plan. The Council explained it would make additional funding available to school M once Y’s EHC Plan was issued naming the school. It stated that school M would then have a duty to deliver the provision specified in Y’s Plan.
31. Ms X was unhappy about this response and informed the Council she would no longer home educate Y, and therefore the Council was required to consider its section 19 duty. She told the Council she wanted an Education Other Than at School (EOTAS) package for Y. The Council responded that Y was enrolled at school M and it was the school’s responsibility to consider this and advised Ms X to contact the school and the Council’s inclusion team directly.
32. Ms X remained dissatisfied with this response and complained to the Council in November. She raised concerns about delays in issuing Y’s EHC Plan and the Council’s failure to provide alternative provision, as Y had not received any education since July 2024.
33. Later that month, the Council issued Y’s EHC Plan naming school M and informed Ms X of her right to appeal to the Tribunal if she disagreed with the named placement in the Plan.
34. In December 2024, the Council sent its complaint response to Ms X. It explained that the delays in issuing Y’s EHC Plan were due to EP shortages, an unusually high number of EHC needs assessment requests and delays in consultation responses from schools due to the summer holidays. The Council also stated it had no record of Y being out of education before January 2025 but it had been holding a placement for Y at school M since March 2024 ready for the September 2024 term start.
35. In January 2025, Ms X appealed to the Tribunal regarding the educational placement named in Section I of Y’s EHC Plan.

My findings

EHC needs assessment delays

36. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
37. Following the Council’s decision in late January 2024 to proceed with an EHC needs assessment, it should have decided whether to issue a Plan by 24 April 2024. Accordingly, the Council should have issued Y’s final EHC Plan by 23 May 2024.
38. The EP report should have been completed by the end of April 2024 to allow the Council to meet this deadline. However, the Council did not receive the EP advice until the end of May 2024, representing a one-month delay. With EP advice in hand, it should have then issued Y’s final EHCP by early July 2024. Despite this, the Council did not issue Y’s EHC Plan until November 2024. This was a further delay of five months which was fault. The five months delay caused Ms X avoidable distress, uncertainty, and delayed her right to appeal to the SEND Tribunal.
39. Overall, the Council took 46 weeks to complete Y’s EHC needs assessment. By comparison, the statutory timeframe for issuing a final Plan is 20 weeks.
40. The Council has an ongoing SEND improvement plan which is addressing EP shortages, and especially delays following receipt of advice. We will continue to monitor progress of this through our casework and so, further service improvement recommendations are not required at this time.

Section 19 duty – alternative provision

41. Ms X decided for Y not to attend school M as it had expressed it could not meet Y’s needs. We have not seen any medical or other evidence from that time to demonstrate Y was unable to attend school M. Instead, Ms X chose to await the outcome of Y’s EHC Plan and for the Council to name a specialist school in Section I, which ultimately it did not.
42. The Council told us, following our enquiries, it was unaware Y was not attending school until January 2025. However, Ms X told the Council in September that she believed Y did not have a school placement and in October 2024 asked the Council to consider its Section 19 duty.
43. On balance the Council was aware from September 2024 that Y was not attending school and therefore should have made enquiries at this point to decide whether it had a duty to provide alternative provision. Not doing so was fault.
44. As explained in paragraphs 9 to 11, by law, I cannot investigate missed alternative provision if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the educational placement in the EHC Plan. When the Council issued Y’s EHCP in November it gave Ms X rights to appeal the named placement in the plan. She made use of her right to appeal to the Tribunal in January 2025.
45. The Council has an ongoing SEND improvement plan which is addressing how it considers its Section 19 duties. We will continue to monitor progress of this through our casework and so, further service improvement recommendations are not required at this time.

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Action

46. Within one month of the final decision, the Council agreed to apologise to Ms X and pay her a total of £600 for the distress, frustration, and uncertainty caused by its delays in issuing Y an EHC Plan within the statutory timeline and the failure to consider its Section 19 duty. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council agreed to consider this guidance in making the apology I have recommended.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I found fault and the Council agreed to my recommendation to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman