Summary: Mrs X complained about delays in the Education, Health and Care (EHC) needs assessment for her daughter, Y. She also complained Y missed education since December 2024. Mrs X said this impacted the family’s mental health and Y missed education. There was fault in the way the Council delayed completing the EHC needs assessment and issuing the plan and did not provide Y with suitable education. This frustrated Mrs X and Y missed education. The Council agreed to apologise and make a financial payment.

The complaint

1. Mrs X complained about delays in the Education, Health and Care (EHC) needs assessment for her daughter, Y. She also complained Y missed education since December 2024. Mrs X said this impacted the family’s mental health and Y missed education.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

8. 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. 
9. 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. 
• 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.

10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

11. Those consulted have a maximum of six weeks to provide the advice. 
12. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan; and
• amendment to these elements of an EHC Plan.

13. Section 19 of the Education Act 1996 says that councils 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. 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.
15. 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.
16. 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. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
17. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
18. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
19. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.
20. 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)
21. 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.

22. 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.
23. Arranging education for children who cannot attend school due to health needs 2023 states, a Council “must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education, councils must look at the evidence for each individual case, even when there is no medical evidence, and make their own decision about alternative education”.

What happened

24. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
25. Y has additional needs. Y’s school applied for an EHC Plan in June 2024.
26. The Council agreed to complete an EHC needs assessment in July 2024. The Council asked professionals to provide information within six weeks.
27. Mrs X chased the Council in November 2024. The Council told Mrs X delays in the EP report was slowing the process.
28. Mrs X stated Y stopped attending school in December 2024.
29. The EP provided the report in January 2025. The Council agreed to issue an EHC Plan the following week.
30. The Council spoke to the school the following day. The Council said the school could put in support to meet Y’s needs. The following week the Council told Mrs X it would ask what provision could be provided while Y could not attend school. The Council told Mrs X the school could put in a section 19 request. Mrs X told the Council she asked the school to submit a section 19 request.
31. The Council issued the draft EHCP at the end of January 2025.
32. Mrs X continued to chase the Council for education for Y.
33. Mrs X complained to the Council in February 2025. She explained Y could not attend school, but the Council was not providing education. She also complained about the delayed EHC needs assessment.
34. The Council responded to Mrs X’s complaint in March 2025. The response apologised for the delayed EHC needs assessment, explaining the delays getting the EP report. The Council confirmed it was considering Mrs X’s comments on the draft EHC Plan. The Council said the school could consider making a section 19 referral.
35. Mrs X continued to chase the Council. The Council considered a section 19 referral from a medical professional in April 2025. The Council decided to defer its decision as Y would have an EHC Plan, and the Special Educational Needs (SEN) service would support Y.
36. The Council told the school it refused the section 19 referral and asked what school was doing to support Y. The school provided information about support which it could offer Y, if she attended school.
37. Mrs X continued to chase the Council and the school.
38. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to accept Y missed education.
39. In response to my enquiries the Council stated it used to prioritise action on referrals from school, but it does not anymore. The Council stated it should have put some interim alternative provision in place for Y.
40. Mrs X continued to chase the Council and the school. The Council issued the final EHC Plan at the end of July 2025. Y started at a new school in September 2025.

My findings

Needs assessment and issuing the EHC Plan

41. We expect councils to follow the statutory timescales set out in the law and the code. We are likely to find fault where there are significant breaches of those timescales. Following the needs assessment application, the Council should have decided if it would complete a needs assessment by August 2024. The Council issued this decision within the deadline. The Council was not at fault.
42. Council’s must seek EP advice as part of an EHC assessment. This should be received within six weeks of the Council requesting it. The EP’s advice was due in September 2024. The Council received the EP report in January 2025, a four-month delay. The Council is responsible for the commissioning and delivery of the EP advice and information. The delay in receiving the advice was due to a nationwide shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons the EP advice took longer than it should have, the delay was nonetheless fault.
43. Even after considering the four-month delay in receiving the EP advice, the Council should have issued the plan by March 2025. The Council issued the plan in July 2025. This four-month Council delay is fault.
44. The Council took 57 weeks to assess Y and issue a final EHC Plan, instead of the 20 weeks required by the regulations and the Code. This eight-month delay is fault.
45. There was an early delay caused by the EP shortage and then a second delay after this before the Council issued the final EHC Plan. This is fault. This frustrated Mrs X and frustrated her appeal right to the Tribunal.

Alternative provision

46. Councils have a duty to provide alternative education under section 19 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”.
47. The Courts have said it is for a council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.
48. The Council complaint response stated the school should submit a section 19 referral. The Council does not need the referral to be from a professional. Mrs X repeatedly chased the Council because Y was out of education. The Council confirmed it knew Y was not attending school in January 2025. Guidance referenced in paragraph 23 confirms a council should make a decision on alternative education.
49. The Council stated the school could provide support for Y. The school then confirmed what was available if Y attended school. The school did not evidence what it was doing to support Y and ensure she received an education. It only stated what would be available, “if” Y attended school. The Council has not provided any assessment into the suitability of the education provision from the school.
50. The Council also did not make a decision when the school did send a section 19 referral. It said it was completing the EHC needs assessment. The Council delayed issuing the EHC Plan. The EHC Plan is a separate matter to the Council ensuring Y received education under its section 19 duty. The Council has now accepted it should have put alternative provision in place while it finalised the EHC Plan. The Council should have completed an assessment to determine if it owed Y a section 19 duty. It did not complete the assessment. This is fault. This frustrated Mrs X and Y missed education from January 2025 until the end of the academic year, two terms.
51. I would usually make service improvement recommendations in a case such as this, but I can see other Ombudsman investigations made these. The Council has explained following similar cases investigated by the Ombudsman the action it is taking to meet the demands in its SEND service and to reduce the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. It has also recently published a new Section 19 policy. I therefore have not recommended further service improvements. We continue to monitor the Council’s ongoing work to improve its services through our casework.

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Recommended action

52. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for the delays issuing the EHC Plan and not providing Y with a suitable education. 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.
• Pay Mrs X £100 per month to recognise the uncertainty, avoidable distress and frustration caused by the delay in obtaining advice from an EP. A total of £400.
• Pay Mrs X £300 to recognise the uncertainty, distress and frustration caused by the four-month Council delay in issuing Y’s EHC Plan.
• Pay Mrs X £2,400 for not ensuring Y received suitable education for two academic terms. This money should be used for Y’s benefit.
53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman