Summary: The Council was at fault for the delay in producing an Education, Health and Care (EHC) Plan for Mrs X’s child, Z. The Council also failed to consider its responsibilities to provide education for Z when it became aware they were not at school, this is fault. The Council has agreed to apologise and make a payment to recognise the distress, frustration and missed provision the faults caused.

The complaint

1. Mrs X complained the Council delayed completing her child, Z’s, Education Health and Care (EHC) needs assessment and issuing their final EHC Plan. She also complained the Council did not provide any education for Z from November 2023. This meant Y missed provision and this caused them frustration and uncertainty. She also complained about delay in the Council’s response to her complaint which added to her frustration.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended) 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

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs 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 Plans

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 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 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. 
• 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 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.

9. 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)  
10. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty.

Alternative Provision

11. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
12. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
13. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure.

What happened

14. Z has Attention Deficit Hyperactivity Disorder (ADHD) and Autistic Spectrum Disorder (ASD). They were on roll at a secondary school but did not attend after November 2023.
15. In March 2024 the Council received a request to undertake an EHC needs assessment for Z. The Council acknowledged the request in April 2024 and explained it had significant delays in its EHC needs assessment process.
16. In May 2024 the Council decided it would not complete an EHC needs assessment, as there was insufficient evidence that Z had special educational needs that could not be met by school.
17. Later in May the school sent additional information, including information to show Z had not attended school since November 2023. In June 2024 the Council agreed to carry out an EHC needs assessment.
18. The Council received advice from an Educational Psychologist in July 2024. This report included information that Z had not been in school since November 2023.
19. In September 2024 Mrs X made a complaint to the Council about the delay in issuing a draft EHC Plan. The Council responded at the end of September 2024. It upheld Mrs X’s complaint and advised her Z’s draft EHCP would be presented to panel in October 2024.
20. In October 2024 Mrs X made a further complaint to the Council about the EHC Plan delay and that Z was without education.
21. The Council issued a draft EHC Plan in October 2024. Mrs X requested 15 days to consider the draft Plan and requested amendments at the end of October. The Council sent a consultation to Z’s secondary school.
22. The draft Plan included the provision of in-person or online tuition at least twice a week for Z whilst they were unable to attend school.
23. In November 2024 Z’s current secondary school responded to the Council’s consultation saying it could not meet Z’s educational needs.
24. In December 2024 Mrs X requested a named special school for Z. In response, the Council sent a consultation to the special school. The school sent a response in December, saying it could offer a place to Z. The Council said the response was sent to the wrong email address and so was missed.
25. In December 2024 Mrs X requested the Council consider online learning as alternative provision for Z.
26. The Council issued an amended draft EHC Plan in December 2024. The Council decided Z’s needs could be met in a mainstream school setting and sent a consultation to a secondary school.
27. During January 2025 Mrs X requested amendments to the amended draft EHC Plan. She also made a further request to the Council to consider interim education at home.
28. In February 2025 the Council spoke with the Educational Psychologist about Z’s needs and said it would make amendments to the draft EHC Plan. The Educational Psychologist also advised the Council that four hours per week online learning would be reasonable for Z.
29. The Council then contacted Mrs X’s preferred special school to ask for its response to the consultation it had sent.
30. The Council issued a further amended draft EHC Plan in February 2025.
31. In May 2025 the Council sent consultations to four special schools.
32. The Council provided an update about the school consultation responses in June 2025. Two of the schools had not responded and the Council arranged it would follow up with them.
33. The Council provided a final response to the complaint Mrs X made in October 2024 in June 2025. In the response the Council:
• Apologised for the delay in the complaint response.
• Acknowledged it failed to notify Mrs X of its decision to provide an EHC Plan for Z.
• Acknowledged it had failed to finalise Z’s EHC Plan within the legal timeframe.
• Apologised for the injustice to Z and for the frustration caused to Mrs X.
• Said it would reallocate Z’s case to a new officer and review all the information.
• Offered Mrs X a financial remedy of £750 for the time and trouble in pursuing her complaint.
34. In June 2025 the Council issued a final EHC Plan. The Plan named Mrs X’s preferred special school from September 2025 and said that until then Z’s current secondary school should provide tuition until the end of the academic year.

Findings

EHC Needs Assessment and Plan

35. We expect councils to follow the statutory timescales set out in the law and in the Code. We are likely to find fault where there are significant breaches of those timescales.
36. The Council received a request to undertake an EHC needs assessment in March 2024. In May 2024 the Council decided it would not complete an assessment as there was insufficient evidence. The Council told Mrs X its decision and told her how she could appeal. There is no evidence of fault in how the Council made this decision.
37. The school sent additional information at the end of May 2024 and in June 2024 the Council decided it would carry out an EHC needs assessment. The Council had 16 weeks from the request for assessment to decide whether it would issue an EHC Plan. I have taken the date of the assessment request to be the date the school sent in its additional information in May 2024. The Council told Mrs X it would issue a Plan in October 2024, a delay of 5 weeks.
38. The final EHC Plan should be issued no more than 14 weeks after the Council agreed to complete an EHC needs assessment. The Council did not issue the final EHC Plan for Z until June 2025.
39. There are times when Mrs X asked the Council for time to make amendments to the draft EHC Plans, including during a few weeks in January 2025. However, on the balance of probabilities I do not consider this contributed to the overall delay in the Council issuing the final EHC Plan.
40. There was a delay of 37 weeks in the Council producing the final EHC Plan for Z. This is fault and caused Mrs X frustration and uncertainty and delayed her right of appeal.

Provision of education

41. Z stopped attending school in November 2023. The information Z’s school sent to the Council in May 2024 included school registers and a note saying there was concern about their school attendance. The Council was made aware in May 2024 that Z was not in school.
42. The draft EHC Plan issued in October 2024 included the requirement for an education plan that included in person or online tuition at least twice a week. Had there been no delay to the EHC Plan, this provision would have been identified in September 2024.
43. Mrs X made a complaint to the Council in October 2024 that Z was not receiving any education and raised it with the Council again in December 2024.
44. I have seen no evidence the Council properly considered its responsibilities under Section 19 to make arrangements for the provision of suitable education for Z. It failed to consider whether to arrange alternative provision and failed to keep this under review. It failed to take any action to establish what, if any, education and support Z was receiving from the school. The failure to properly consider its section 19 duty is fault.
45. As identified in the EHC Plan, Z should have received at least 4 hours per week in person or online tuition. This should have been provided between May 2024 and July 2025. The Council’s failure to ensure this provision was in place for Z is fault and meant Z missed out on education.

Communication and Complaint Handling

46. The Council made no contact with Mrs X between February and May 2025. The Council was aware an EHC Plan was not in place, Z was not in school or receiving alternative provision. This is below the levels of communication that should be expected by the Council and is fault, which caused significant frustration to Mrs X.
47. The Council’s Compliments and Complaints Policy is to respond to stage two complaints within 20 days and, where this is not possible, to provide regular updates every two weeks. The Council took eight months to provide Mrs X with a stage two complaint response and did not provide any updates. This is fault and caused Mrs X frustration and uncertainty. The Council has apologised to Mrs X and offered her a financial remedy of £750 for the injustice to her from its poor complaint handling.

Service Improvements

48. Since Mrs X made her complaint to the Ombudsman, we have issued other decision statements for this Council which made service improvement recommendations. These included reminding staff about:
• Its duties under Section 19 of the Education Act.
• The importance of statutory timeframes in the EHC Plan process.
• The timescales set out in the Council’s complaints policy.
49. In its stage one response to Mrs X the Council said it had introduced an EHC Hub, providing a more transparent system.
50. The Council says it has made changes to the SEND service to drive improvement and has introduced interim measures to address its backlog and outstanding complaints.
51. I am satisfied the Council is already taking action to address the faults I have identified, and we will continue to monitor its performance through our case work. I have limited my service improvement recommendations to those areas not covered by previous decisions.

Agreed Action

52. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs X for the distress, frustration and uncertainty caused by Z’s missed education, the delay to Z’s EHC Plan and it’s poor complaint handling. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Mrs X £4200 to remedy the injustice caused to Z from missing over three terms of education between May 2024 and July 2025.
3. Pay Mrs X £500 for the distress and frustration caused to her by the delay in Z’s EHC Plan and the Council’s poor communication and complaint handling.
4. With the provision of appropriate receipts, the Council should reimburse Mrs X the cost of online educational subscriptions and educational outings she purchased for Z between May 2024 and July 2025.
5. Issue guidance to staff to ensure they understand the Council’s duty to provide alternative provision when a child of statutory school age is out of school for health reasons. The council should consider sharing a copy of our focus report ‘Out of school…. Out of sight?’ and our final decision with the reminder.
53. The agreed remedy payments are inclusive of the £750 the Council offered Mrs X to remedy the injustice of its poor complaint handling.
54. The Council should provide us with evidence it has complied with the above actions.

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Decision

55. I find fault causing injustice and the Council has agreed to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman