Summary: Ms C complained about delays in the EHC needs assessment process for her child (X), and about the amount of education he received. We found delays in the Education, Health, and Care needs assessment process, this was a service failure causing Ms C frustration and uncertainty. We did not find fault in the process the Council followed to consider alternative provision. The Council will apologise and make a symbolic payment to remedy the injustice its delays caused Ms C.

The complaint

1. The complainant, Ms C, complained about the Council’s handling of her son’s (X) education. She said:
• it agreed to complete an Education, Health, and Care needs assessment for X in July 2024, but failed to adhere to the statutory timescales for the process; and
• it failed to provide X with an education when he was unable to attend his school.
2. Ms C also complained to X’s school about the informal exclusions, concerns about his safety in school, and school records having discriminatory language about X.
3. Ms C said, as a result, X had experienced distress and a loss of education. She also said she experienced distress and uncertainty.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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(1), as amended)

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What I have and have not investigated

10. I have investigated Ms C’s complaint about the Council’s handling of the Education, Health, and Care needs assessment process for X, and its education duty.
11. I have not investigated Ms C’s concerns about:
• X’s school’s decision to apply temporary exclusions, how it kept X safe in school, or whether its records were discriminatory. This is because this relates to what happened in a school, which I cannot investigate. Ms C has made a complaint to the school which is the appropriate route to have her concerns addressed.
• Ms C’s concerns about the suitability of the school placement or her request for specific therapies or provision to be provided. This is because concerns about school placement and special educational needs provision carries appeal rights to the SEND Tribunal which is best placed to consider this.

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How I considered this complaint

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

Education, Health, and Care Plans

15. 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 council can do this.
16. 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:
17. 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.
18. 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.
19. 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.
20. If the council then 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)

Alternative Provision

21. 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.
22. 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)
23. 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))
24. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
25. The Government has issued statutory guidance which Councils must follow unless they have good reason. (Ensuring a good education for children who cannot attend school because of health needs, issued by the Department for Education in January 2013)
26. Government guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
27. The Local Government Ombudsman has issued guidance to councils on how we expect them 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)
28. In reaching a decision on whether a child is medically or otherwise unable to attend school, we expect councils to act quickly and (where necessary) consult the relevant professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of their evidence. If a council decides that the school place remains available and assessable to the child after considering all relevant evidence, we would expect this to be clearly documented, and communicated promptly to the parents.

Reduced timetables

29. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
30. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

31. Ms C’s son (X) has been diagnosed with a health condition and has special educational needs.
32. Ms C asked the Council to complete an EHC needs assessment for X in June 2024. She also arranged private speech and language sessions for X. The following month the Council agreed to assess X.
33. X started attending a primary school in September 2024 until Ms C de-registered him from the School in April 2024. During this time,
• X was placed on a reduced timetable of 1.5 hours per day. This was increased to 3 hours per day following a review. The school provided updates to the Council at the end of the agreed reduced timetable periods;
• X had several absences due to illness, and the school recorded unauthorised absences. Ms C said the school wrongly sent X home on three occasions due to being dysregulated, toileting difficulties and behaviour issues;
• the Council increased the funding it was providing X’s school under an Individual Resource Agreement in October 2024. It later further increased the funding. This was to enable the school to provide special educational needs support for X until it could complete the EHC needs assessment process;
• Ms C raised concerns to the School about how X was supported, which resulted in a complaint against the school in March 2025;
• Ms C shared her concerns about the school with the Council and continued to chase it for the completion of X’s EHC needs assessment; and
• in early 2025 the Council’s attendance team visited the school. It considered the support and steps which had put in place for X and found this to be satisfactory. Its view was the school was suitable for X’s needs.

Ms C’s complaint

34. Ms C complained to the Council in April 2024. She said it had:
• failed to adhere to the statutory timescales for the EHC needs assessment process and asked it to complete X’s EHC Plan and list a specific special school;
• failed to ensure X received a full-time education. She said she had only agreed to the part time timetable as she felt pressured and did not know her rights. She also said X’s school could not meet his needs despite the Council’s increased funding;
• she shared the concerns she had about X’s school regarding his safety and exclusions, including her view it had a poor understanding of his diagnosis and was discriminatory; and
• said she may raise a safeguarding concern with the Local Authority Designated Officer.
35. The Council acknowledged her complaint and said it would provide a response quickly. It asked her consent to share information about her case more widely regarding her concerns about X’s school.
36. In response to Ms C’s complaint, the Council apologised for its failure to complete X’s EHC needs assessment process. It explained it has a SEND Action plan to address issues with delays in the process due to a shortage of Educational Psychologists and high demand on its service. However, it expected to allocate one before the end of April 2025. It also said:
• X would continue to receive the support through his school and the Council’s additional funding which had been further increased until the EHC needs assessment process was completed; and
• Ms C had correctly brought her concerns about X’s safety in school to the schools attention through a complaint, including her concerns about the school discriminating X. However, it would meet with the school to discuss if anything could be done differently to support X.
37. Ms C de-registered X from his school after the Easter break. She said she would home educate him until the Council had completed the EHC needs assessment process and listed a special school placement.
38. The school informed the Council about X’s de-registration. It said it did not have welfare concerns about the arrangement.
39. The Council allocated an educational psychologist to X’s case before the end of April 2024.
40. Ms C asked the Council for clarification of the experience and knowledge of the educational psychologist and asked for speech and language therapy to be put in place for X. In response the Council reassured her about the psychologist’s experience and its quality assurance process. It explained it could not put her requested therapy for X in place until X’s needs had been assessed and an EHC Plan was issued.
41. Ms C remains dissatisfied with the Council’s response and how it handled X’s EHC needs assessment process and education.

Analysis and finding

Delays in the EHC needs assessment process

42. The Council has accepted fault for its delayed EHC needs assessment process for X. The delays were caused by the Council’s challenges to recruit and retain enough educational psychologists and the demand on its service. I found it has therefore caused a service failure.
43. Ms C requested the assessment for X in June 2024, and the Council agreed to carry out the assessment in July 2024. It thereafter had 14 weeks to complete the process, which was early November 2024.
44. Having identified fault, I must consider whether this has caused Ms C and X an injustice. The delay in completing the EHC needs assessment process has caused Ms C frustration and uncertainty. It is also delaying her right of appeal to the SEND tribunal. I found the Council should make a symbolic payment to recognise the frustration and uncertainty Ms C has experienced. Because the Council has not made a decision whether it will issue X with an EHC Plan, I cannot say what, if any, special education X has missed out on.
45. We can also make recommendations to ensure similar faults do not happen in the future. We have investigated other similar complaints recently related to the EHC needs assessment process and made recommendations. The Council produced an ‘action plan’ to address our concerns and has recently changed its procedures. I will not, therefore, make further recommendations relating to this matter.

X’s education

46. I have considered whether the Council properly considered its alternative provision duty towards X. I have not found the Council to be at fault for the actions and steps it took to consider this from September 2024 to April 2025. In reaching my view, I was conscious:
• when X started his school he was on a reduced timetable to enable his transition. This was agreed with Ms C;
• the Council considered the reduced timetable at the end of the six-week period when the school provided an update. It was agreed for a further period of a reduced timetable with X attending three hours per day. Ms C agreed to this arrangement;
• the Council increased the funding to the school to support X with his special educational needs and due to the delayed EHC needs assessment process. It later further increased the funding;
• it considered X’s attendance and the reasons for some of his absences; and
• when Ms C brought her concerns about the amount of education X was receiving to the Council’s attention, it considered her concerns and spoke with the school. Its attendance team visited the school to consider the steps it had put in place to support X. This included considering the support available to X and whether it was safe and suitable in the Council’s view.
47. I have not found fault in the process the Council followed to reach its views. It therefore made decisions it was entitled to make. It is not for the Ombudsman to decide what or how much education X could manage. This is a decision for the Council to make once it has considered all relevant evidence.
48. In addition, I understand X’s reduced attendance at school related to the special education needs provision Ms C believed he should receive through an EHC Plan and a special school placement. X’s attendance was therefore linked with what can be appealed to the SEND Tribunal when the Council has completed the EHC needs assessment process.

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Action

49. To remedy the injustice the Council caused to Ms C, the Council should, within one month of the final decision:
1. apologise in writing to Ms C to acknowledge the injustice its faults caused her;

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 Ms C £100 per month of delay in the statutory Education, Health, and Care needs assessment process. This is:
1. from November 2024 until it has reached its decision whether to issue an Education, Health, and Care Plan for X; or
2. from November 2024 until it has issued X final Education, Health, and Care Plan, if it goes on to decide this is needed.
2. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I have completed my investigation with a finding of fault by the Council which caused, and is continuing to cause, Ms C an injustice. The Council has agreed to my recommendations.

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Investigator's decision on behalf of the Ombudsman