Summary: We found fault with the Council delaying outside the statutory timescales in producing Mrs X’s child’s Education, Health and Care Plan, delaying its consideration about whether it owed a Section 19 duty to provide alternative provision of education to Mrs X’s child and for delays handling Mrs X’s complaint. The Council agreed to apologise to Mrs X and provide her with symbolic financial gestures for the injustice its fault caused to Mrs X and her child.

The complaint

1. Mrs X complained the Council delayed for six months outside the statutory timescales in producing her child’s Education, Health and Care (EHC) Plan.
2. Mrs X says her child did not receive suitable education from September 2024 because they were not attending school. Mrs X says the school was an unsuitable placement and her child did not have EHC Plan provision in place.
3. Mrs X also complained about the way in which the Council communicated with her including both through complaint handling delays and lack of responses and contact from the Council in general.

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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. 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)
7. 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

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. 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

Rules and Regulations

EHC Plan

10. 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. 
11. 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.
  (Delete irrelevant bullet points)

12. 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). 

Section 19

13. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
14. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
15. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

16. 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.

Council complaints policy

17. The Council runs a two-stage complaints procedure. The Council says it will acknowledge a complaint within five working days and issue a response at stage one within a further ten working days.
18. If a person is dissatisfied with the Council’s stage one complaint response they can request consideration of their complaint at stage two. The Council says it will acknowledge a request for escalation to stage two within five working days and issue a response within a further twenty working days.

What happened

19. In April 2024, Mrs X made an EHC Plan Needs Assessment application for their child, Y. The Council confirmed in May 2024 that it would assess Y for an EHC Plan.
20. Y stopped attending school in September 2024.
21. In October 2024, the Council received the EP report for Y.
22. The Council attended a Targeted Support meeting with Y’s school in November 2024. Y’s school confirmed Y’s attendance for the academic year was 24% and Y was currently refusing to attend school. Later in November 2024, Mrs X told the Council about Y’s low attendance rate at school.
23. Mrs X was in regular contact with the Council to request updates about the progress of Y’s EHC Plan from October 2024 to the end of March 2025. Mrs X also contacted her MP in October 2024, January 2025 and March 2025 to try to escalate her concerns.
24. In February 2025, Mrs X made a complaint to the Council. Mrs X said:
• The Council should have issued Y’s EHC Plan in September 2024.
• Y’s school provided an EP assessment in October 2024 but the Council had not issued the EHC Plan to date.
• The Council’s communication with her had been poor.
• Y had been out of school since September 2024 and the Council has not offered any guidance, support or Alternative Provision of education.
25. In March 2025, Mrs X asked the Council when it would put in place Alternative Provision of education for Y. The Council gathered information about Y’s absence and school following Mrs X’s contact but made no formal decision about provision of education for Y.
26. In March 2025, the Council had a Targeted Support meeting with the Council and noted that Y’s school had arranged two days of tutoring for Y.
27. The Council issued a Final EHC Plan for Y at the end of March 2025. The Council shared this Final EHC Plan with Mrs X and outlined her appeal rights to the SEND Tribunal about the content of the EHC Plan. Within Y’s final EHC Plan, the Council included school-based provision but did not include therapy provision for Emotionally Based School Avoidance. The Council named a new school placement from April 2025 in Section I.
28. Y started the provision named in Section I in April 2025.
29. Near the end of April 2025, the Council issued its stage one complaint response. The Council apologised for the delays with Y’s EHC Plan, accepted it had not met the statutory timescales and apologised for the lack of communication. The Council said it had now found a suitable school placement for Y and named this in Y’s March 2025 EHC Plan.
30. Mrs X asked for consideration of her complaint at stage two in April 2025. Since Mrs X did not receive a response, she followed up with her MP in September 2025 who contacted the Council.
31. In October 2025, the Council issued a stage two complaint response. The Council said:
• It apologised for the delay in responding to Mrs X’s complaint and failing to meet the statutory timescales in production of Y’s EHC Plan.
• The Council said it experienced delays with its EP service which delayed Y’s EHC Plan.
• Y had a school placement, before the March 2025 EHC Plan changed this, and if that previous school authorised Y’s absence it was responsible for providing education for Y during his absence. The Council explained that while it has a general responsibility to provide education during times when a child does not have access to education it considered Y had a school placement available to them.
• It was not responsible for delivering Y’s EHC Plan provision until it produced the EHC Plan.

Analysis

Education, Health and Care Plan

32. Mrs X asked for an EHC Plan needs assessment of Y in April 2024. The Council had six weeks to decide whether to complete an assessment of Y. The Council met this deadline when it agreed to assess Y in May 2024. I do not find fault with the Council.
33. Since the Council agreed to assess Y for an EHC Plan, and later went on to issue a Final EHC Plan for Y, the Council had until September 2024 to produce a Final EHC Plan. The Council failed to issue a Final EHC Plan until near the end of March 2025. This was a delay of just under seven months outside the statutory timescales and was fault.
34. The Council’s initial delay outside the statutory timescales of one and a half months was because of delayed EP advice. This service failure came about because of an increase in requests for EHC needs assessments and not enough EPs to meet the demand.
35. When the Council received the EP report in October 2024, any further delay was not through the lack of EP input. The Council took a further five and a half months to finalise Y’s EHC Plan when it was already outside the statutory timescales. This caused a delay to Y receiving the provision in their EHC Plan and delayed any appeal rights about the content of the EHC Plan.
36. Mrs X put in place Emotional Based School Avoidance therapy for Y before the Council finalised Y’s EHC Plan in the absence of support from the Council. Mrs X said the EP report supported this therapy provision. When the Council finalised Y’s EHC Plan, it did not contain any provision for Emotional Base School Avoidance.
37. I cannot justify a rebate of the Emotional Based School Avoidance therapy as this is not something covered by Y’s EHC Plan. This is because the Council’s fault in delaying the EHC Plan has not caused Mrs X to incur these costs. However, the EP report provided the Council with relevant information about what support Y should receive. The Council used this report to inform the EHC Plan it produced in March 2025. The Council’s delay caused Y to not receive any of the provision they were entitled to from their EHC Plan from October 2024 to March 2025. While I cannot rebate the direct costs Mrs X incurred, I consider the Council should provide a symbolic payment for the delay in Y receiving the provision they were entitled to.

Access to education

38. The first evidence of contact from either Mrs X or Y’s school with the Council to let them know Y was not attending school was in November 2024. At this time, the Council should have considered all reasons for Y’s absence from school. The Council should then have made a decision about whether Y could access education in school, whether Y needed a reduced timetable with a reintegration plan or whether Y needed alternative provision of education. The Council should then have communicated its decision to Mrs X. The Council did not make any decision about Y’s access to education in November 2024. This was fault.
39. From November 2024 until Y started at their new educational placement in April 2025, the Council had opportunity to consider Y’s absence from the school. The Council took no steps to consider Y’s access to education until March 2025 and, even at that time did not make a decision about Y’s access to education. The first evidence of the Council considering Y’s access to education from September 2024 to April 2024 is in the Council’s complaint response in October 2025. This delay in considering Y’s access to education is fault.
40. When the Council considered Y’s access to education it outlined it did not consider it would have needed to provide alternative provision of education for Y because they had a suitable and accessible school available to them. This was a merits decision the Council was entitled to make. However, the failure to consider this at the correct time and delay in communicating this decision until October 2025 would have caused Mrs X distress and uncertainty about her child’s access to education from November 2024 to April 2025.

Service improvements

41. Following previous Ombudsman decisions about matters covering a similar time period to Mrs X’s complaint, the Council is already undertaking service improvements relevant to this case. The Council is completing a comprehensive review of SEND processes including increasing the number of EPs and enhancing the capacity of the Council's SEND team. The Council has also agreed to undertake an Action Plan recommended by the Ombudsman about how it will ensure it considers its Section 19 duty to children. This work is underway and continues to be under review by the Ombudsman. I do not consider further service improvements would add to the work already underway.

Complaint handling

42. The Council’s complaints procedure gives it a maximum of fifteen working days to respond to a person’s complaint at stage one. The Council took thirty-five working days outside its complaint timescales to provide its stage one complaint response. This delay was fault.
43. At stage two, the Council’s complaints procedure gives it a maximum of twenty-five working days to respond. The Council took eighty-four working days outside its complaint timescales to provide its stage two complaint response. This delay was fault.
44. Overall, the Council delayed by a total of one hundred and nineteen working days, about 24 weeks, outside the Council’s complaint procedure responding to Mrs X. Mrs X needed to contact the Council numerous times from 16 October 2024 to 28 March 2025 to get updates about her child’s EHC Plan. While the Council provided responses to most of Mrs X’s contacts, Mrs X still needed to contact for updates. And, Mrs X also needed to contact her MP multiple times to try to get updates from the Council about her complaint and production of Y’s EHC Plan.
45. The Council’s delays caused Mrs X distress and uncertainty and put her to time and trouble. I consider the Council should apologise to Mrs X and pay her a symbolic payment for the injustice the Council’s fault caused.

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Action

46. Within one month of the Ombudsman’s final decision the Council will:
1. Apologise to Mrs X for the delays in issuing Y’s final Education, Health and Care Plan, its delay in considering whether it owed a section 19 duty to Y and for its complaint handling delays. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
2. Pay Mrs X £150 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in issuing Y with an Education, Health and Care Plan caused by the delay in obtaining advice from an Educational Psychologist;
3. Pay Mrs X £1,000 to recognise Y’s loss of opportunity to receive provision in line with Y’s Education, Health and Care Plan between October 2024 and the end of March 2025 caused by the delay in issuing the final Education, Health and Care Plan after it received Educational Psychologist advice;
4. Pay Mrs X £500 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s failure to properly consider whether it owed Y a section 19 duty from November2024 to April 2025 and the further delay in communicating its decision until October 2025; and
5. Pay Mrs X £300 for the distress, uncertainty, time and trouble the Council’s complaint handling delays caused her.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. 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