Summary: Mrs X complained about the Council’s actions relating to her son’s education. We found fault because the Council took too long to issue his Education, Health and Care Plan. It also failed to appropriately consider whether it owed him a duty to provide alternative education when he could not attend school. This caused Mrs X avoidable distress, frustration and uncertainty. It also meant her son missed out on education. The Council has already offered Mrs X payments to remedy missed education. The Council will now offer increased payments for missed education, offer Mrs X its suggested payment for the delay in completing her son’s plan and apologise to her.

The complaint

1. Mrs X complains about the Council’s actions related to her son, Y’s, education. Specifically, she complains the Council:
• took too long to finalise Y’s first Education, Health and Care (EHC) Plan; and
• failed to organise appropriate alternative education provision when Y was unable to attend school.
2. Mrs X says this caused considerable distress, frustration and uncertainty. She also says Y missed out on education provision he was due.

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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. 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. My investigation will start in April 2024. This is 12 months before Mrs X brought her complaint to us.
7. My investigation will end when Mrs X brought her complaint to us at the end of April 2025.

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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 the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Timescales and process for EHC assessment 

10. An EHC Plan is a document which sets out a child’s special educational needs and what arrangements should be made to meet them.
11. Statutory guidance ‘Special educational needs (SEN) and disability code of practice: 0 to 25 years’ 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.
12. If a 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).  

Section 19 alternative education duty

13. 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 S19 or alternative education provision (AP).
14. 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)

Available and accessible

15. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

16. I have set out below a summary of the key events. This is not meant to show everything that happened. Mrs X’s son, Y, was at primary school (School A) during my investigation period.

2024

17. At the beginning of July 2024, Mrs X contacted the Council and asked it to arrange AP for Y under its S19 duties. She explained in detail Y’s difficulties in attending school and how this had been an increasing pattern over the last two years. Mrs X explained she had requested a part-time timetable and support in school which she said had initially been refused.
18. Mrs X discussed the situation with the Council at the end of July. Mrs X advised that Y had been attending an after-school club and that school had said it would organise some home tutoring which she wanted to start in September.
19. At the beginning of September, Mrs X requested an EHC needs assessment (the assessment) on Y. This was to determine if Y had SEN which would result in an EHC Plan.
20. School A put a phased transition plan in place for September. The plan was for Y to access the school site regularly for after-school clubs and work on his anxiety. The plan did not show any formal subject-based education for him.
21. The Council referred the case to its attendance improvement team at the end of September. By 10 October, the Council had spoken to School A. The Council’s extended absence panel (EAP) considered the case. It was aware Y was not attending but that school was seeing him at the end of each day.
22. The Council replied to the assessment request on 14 October to say it would carry this out. It sent requests to various parties for information on Y, including an educational psychologist (EP) report.
23. At the beginning of November, the Council closed its EAP file on Y. It decided School A’s offer was appropriate for his current needs.
24. At the beginning of December 2024, Mrs X contacted the Council to say Y was now not attending school at all. The Council told Mrs X it would discuss his case at the EAP on 16 January 2025.

2025

25. The Council received the EP report as part of the assessment process on 18 February 2025.
26. The same day, Mrs X submitted a stage one complaint to the Council. She said Y had been unable to fully attend school since December 2023 and despite her repeated requests no AP had been organised for him.
27. The Council referred Y’s case back to its EAP at the end of March.
28. The Council sent its stage one response on 1 April. It said it had already referred his case back to the EAP. Tutoring had been agreed for Y at the end of March. It said the relevant team would be in contact with Mrs X to discuss.
29. Mrs X escalated her complaint to stage two of the Council’s process. The Council replied on 22 April. The response:
• said the stage one complaint was thoroughly investigated but apologised the response lacked sufficient detail;
• confirmed the draft of Y’s EHC Plan would be sent by 1 May;
• apologised the Council should have maintained ongoing oversight of Y’s case when the new academic year started in September 2024 but did not do so;
• said it had failed to keep in contact with her about the EHC Plan progress; and
• said the tuition offer had been made when it was clear Y was not accessing any education at all after Mrs X’s December 2024 contact to the Council.
30. The Council ended the response by offering £1200 for each of the two terms of September to December 2024 and January to April 2025. It said this offer was to recognise the lack of proactive oversight on Y’s attendance from September 2024 and a lack of intervention to secure a suitable alternative offer. It said this fault had impacted Y’s education. The response signposted Mrs X to the Ombudsman. She brought her complaint to us at the end of April.
31. Mrs X confirmed to me she had not accepted the Council’s suggested remedy offer. She also confirmed Y successfully accessed tutoring put in place after the end of my investigation period.
32. The Council sent Y’s first Final EHC Plan on 26 September 2025.

Analysis

S19 education

33. In my enquiries to the Council, I asked if it had accepted any S19 duty during the time of my investigation. In response, the Council outlined the initial considerations of the EAP and said it had not accepted an S19 duty at that time.
34. It also highlighted its stage two response to Mrs X that it should have done more to maintain oversight of Y’s attendance and keep in contact with her. It said on the balance of probabilities, if it had increased its oversight, it would likely have accepted an S19 duty later in the autumn term of 2024 (September to December).
35. Evidence shows that in the autumn term Y was able to, at times, attend the school site. However, this was not for any type of formal education. The Council was aware of this early in October 2024.
36. There is no evidence the Council considered Y’s case at its EAP panel in January 2025 as it said it would. This was despite Mrs X’s confirmation in December 2024 that Y was now not attending the school site at all. No further action was taken relating to S19 until after Mrs X had made her complaint in mid-February 2025. After speaking with Mrs X on 11 March as part of the complaint process, the Council then re-considered Y’s case at the EAP at the end of March 2025.
37. I agree with the Council’s assessment and am satisfied it did not show appropriate oversight of Y’s case in relation to its S19 duties to consider whether it should provide AP for Y. Not doing so was fault. This caused Mrs X distress, frustration and uncertainty. It meant Y missed out on education he was due.
38. The Council advised me it had offered £1200 per term to remedy this, taking into account Y’s age, school year and SEN as well as his ability to engage in the provision that was on offer from the school.
39. I welcome this offer to Mrs X but am not satisfied it is sufficient to remedy the injustice caused to Y. I consider the Council had been adequately notified by Mrs X in July 2024 of Y’s difficulties in attending. The transition plan did not provide any formal education for Y. It was clear by mid-October 2024 that he was not attending other than at the end of the day and was therefore not receiving any formal education. I have therefore made a recommendation of an increased remedy amount for the autumn term 2024.
40. For the spring term, the Council also offered £1200. Again, I do not consider this adequately remedies the injustice caused to Y. By mid-December, the Council knew Y was not attending School A at all. Matters were not referred to the EAP as Mrs X was expecting and therefore Y was without any education for the complete term. I have made a recommendation of an increased amount for the spring term 2025.
41. From a similar but unrelated complaint, the Council has already produced an action plan relating to its S19 oversight and referral framework. On this basis, I will make no further recommendations related to S19 duties.

Delayed EHC Plan

42. If, as part of the assessment process, the Council decides to issue an EHC Plan, the process from beginning to end should take no more than 20 weeks. In this case, the 20-week deadline was the end of January 2025. In Mrs X’s case, the Council took 54 weeks to issue the plan. When issued in September 2025, the overall delay was eight months.
43. In response to my enquiries, the Council said the delay was due to two factors. The first was due to a delayed allocation to an EP in order to complete a report on Y. The second was due to the finalisation process on the Council’s part. It said it had reminded staff of their duty to finalise EHC Plans without delay and do this within four weeks of having issued the draft plan.
44. Not issuing the EHC Plan within 20 weeks was fault. It caused avoidable distress, frustration and uncertainty to Mrs X. It also meant her right of appeal to the Tribunal was delayed.
45. The Ombudsman recognises national issues related to the shortage of available EPs. We recommend £100 per month for delayed completion of an EHC Plan where the delay was caused by EP shortages. As part of its response to my enquiries, the Council has acknowledged our stance and has suggested an £800 payment to Mrs X to remedy the delayed issue of the EHC Plan. I am satisfied this is an appropriate remedy for the injustice caused by the delay and have reflected this in my recommendations below.
46. In response to a similar but unrelated complaint about delays in the Council finalising EHC Plans, we issued a report in August 2025. As part of this, the Council agreed to create an action plan to show how it will improve its speed in issuing plans after EP reports have been received. On this basis, I will make no further recommendation related to this aspect.

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Agreed action

47. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mrs X for the identified injustice;
• pay Mrs X £1500 for the lack of Y’s appropriate alternative education for the autumn term 2024;
• pay Mrs X £2000 for the lack of Y’s appropriate alternative education for the spring term 2025; and
• pay Mrs X £800 for the delayed issue of Y’s EHC plan, as suggested.
48. The missed education payment recommendations are made on the basis that Mrs X has not accepted the Council’s previous offer. They are not in addition to the amount previously offered but instead replace it.
49. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
50. Payments made are in line with the Ombudsman’s guidance on remedies.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman