Summary: Miss X complained the Council failed to adhere to the statutory timeframes for issuing her child, Z’s, Education, Health and Care Plan, and it failed to provide Z with access to suitable education. We find the Council at fault for a delay in issuing a final Education, Health and Care Plan and a delay in securing suitable education. This caused distress and frustration for Miss X and significantly impacted Z’s access to education. The Council has agreed to apologise, make a symbolic payment to Miss X and ensure it has a robust section 19 referral process in place available to any staff member working with children out of education.

The complaint

1. Miss X complained the Council failed to adhere to the statutory timeframe for completing an Education, Health and Care needs assessment for her child, Z, and that Z has been out of education for a prolonged period. Miss X told us, as a result, Z’s mental health has been impacted, and Z has fallen behind socially and academically. Miss X also told us she has had to take time off work to support Z and chase the Council for support. Miss X also told us the mental health of the family has been impacted. Miss X would like a financial payment from the Council to help pay for therapy and tuition to support Z.

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The Ombudsman’s role and powers

2. 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)
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. 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)
5. 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

6. The law says we cannot normally investigate a complaint where the person has a right to appeal to a tribunal about the same matter. The Council issued a final Plan in May 2025 which had a school named in section I. Miss X did not agree the named school was suitable and used her right to appeal.
7. 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)
8. 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.
9. For this reason, I have not investigated the part of Miss X’s complaint which relates to the Council providing Z with access to education after the Education, Health and Care Plan was issued in May 2025. My investigation looks at the Council’s process for completing the Education, Health and Care needs assessment and its consideration of its section 19 duty between September 2024 and May 2025.

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How I considered this complaint

10. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
11. Miss 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

Legal and administrative background

Education, Health and Care Plan

12. 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.

Timescales and process for EHC assessment 

13. 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 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.

Section 19 duty

14. 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.
15. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
16. 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))
17. 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)
18. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

EHC needs assessment

19. The Council received an EHC needs assessment request for Z at the end of September 2024. In accordance with statutory timeframes the Council should have issued a final Plan by the second week of February 2025.
20. Due to delays with completing an educational psychology assessment and staff shortages, the Council did not issue Z’s final EHC Plan until the second week of May 2025. This is a delay of approximately 3 months.

Section 19 duty

21. Z began year 7 at a new secondary school in September 2024. Prior to this transition Z had struggled to attend primary school. The Council were aware of Z’s attendance difficulties, and the family was supported by the Council’s Early Help team.
22. Following the transition to secondary school Z’s attendance difficulties increased.
23. At the beginning of October 2024, the school contacted the Council’s SEND Support Service (SSS) to explain Z’s attendance difficulties and request support.
24. Miss X and Z’s school tried multiple approaches to encourage Z to access education however they were unsuccessful.
25. Between September 2024 and February 2025 there were multiple Council officers from various teams who were aware of Z’s attendance difficulties and the significant impact this was having on Z. The officers attempted various support strategies, but none were successful in engaging Z in education.
26. From November 2024, Z accessed one hour per week of Equine therapy. Funding for this provision was ended after six weeks. The Council has not provided any evidence which shows it considered how this provision amounted to suitable, full-time education for Z.
27. The Council has not provided evidence any of the officers involved in supporting Z from September 2024 onwards considered the Council’s section 19 duty until Miss X raised this in an email at the end of January 2025.
28. The Council requested alternative provision for Z in February 2025.
29. The day after the request for alternative provision was submitted, the Council’s School Attendance Panel agreed to fund tuition for Z. Due to difficulties in finding a suitable tutor, the tuition did not begin until the end of April 2025.

My findings

30. There was a three month delay in the Council issuing Z’s final EHC Plan. This is fault which caused Miss X distress, frustration and uncertainty.
31. The Council has not provided any evidence its officers considered the Council’s section 19 duty between September 2024 and January 2025. This is fault which caused distress, frustration and uncertainty for Miss X and Z.
32. There was an 8 month delay in the Council securing suitable alternative provision for Z once it was aware of Z’s significant attendance difficulties in September 2024. This caused Z to miss approximately 2 and a half terms of education.

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Action

33. Within one month of the final decision the Council will:
• Apologise to Miss X and Z for the injustice caused by the delay in issuing the final EHC Plan and securing suitable, alternative provision. 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 its apology.
• Make a symbolic payment of £300 to Miss X in recognition of the distress, frustration and uncertainty caused by the delay in issuing the final Education, Health and Care Plan.
• Make a further symbolic payment of £3,750 to Miss X in recognition of the distress, frustration and loss of education caused by the delay in securing suitable alternative provision for Z. In line with our guidance on remedies, this is calculated at £1500 per term of missed education and takes into account the impact of Z missing education during a key transition year.
34. Within three months of the final decision the Council will ensure it has a robust process in place to ensure all teams who support children out of education are able to refer the child to the relevant panel for section 19 consideration.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman