Summary: Mrs X complained about significant delays by the Council in carrying out her son, Y’s, Education, Health and Care needs assessment. Mrs X also complained the Council failed to put alternative provision in place, and about delays responding to her formal complaint. The Council was at fault for delays and for failing to properly consider its duty to provide alternative provision. The Council agreed to provide a symbolic financial remedy for the uncertainty and distress this caused.

The complaint

1. Mrs X complained about significant delays by the Council in carrying out her son, Y’s, Education, Health and Care needs assessment. Mrs X also complained the Council failed to put alternative provision in place for Y in the meantime when he could not attend school. Last, Mrs X complained about delays by the Council responding to her formal complaint.
2. Mrs X said Y had not received any education for nearly a year, impacting his development and welfare.
3. The situation has caused Mrs X distress, and she has been forced to educate Y from home, meaning she cannot work.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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

7. As part of the investigation, I considered the complaint and the information Mrs X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. 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

10. Education Health and Care Plans
11. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
12. Education, Health and Care Needs Assessments
13. To decide whether a child or young person needs an EHC Plan, councils will carry out an EHC Needs Assessment.
14. 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:
• where a council receives a request for an EHC needs assessment it must decide within six weeks whether to agree to the assessment;
• a council should decide if it will issue an EHC Plan within 16 weeks of the request for an assessment; and
• the whole process from the point an assessment is requested until a final EHC Plan is issued must take no more than 20 weeks.
15. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes but is not limited to: 
• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an Educational Psychologist (EP). 
16. Those consulted have a maximum of six weeks to provide the advice. 
17. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right only arises once a decision not to assess, issue or amend a Plan has been made and sent to the parent or a final EHC Plan has been issued.

Service failure

18. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
19. Section 19 duty (alternative provision)
20. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
21. 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))
22. 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.
23. Elective home education (EHE)
24. Parents have a right to educate their children at home (Section 7, Education Act 1996). There is guidance setting out how this type of home education should be approached by councils (Elective Home Education, Departmental guidance for local authorities, April 2019).
25. Elective home education is a term used to describe a choice by parents to provide education for their children at home. (Paragraph 1.1, Elective Home Education, Departmental guidance for local authorities, April 2019)
26. The 2019 guidance states that educating children at home works well where there is a positive, informed and dedicated choice.
27. The guidance also states that although the primary responsibility for ensuring that children are properly educated belongs to parents, a local authority has a moral and social obligation to ensure that a child is safe and being suitably educated. If it is not clear that that is the case, the authority should act to remedy the position.
28. Home education is not the only alternative to school attendance. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education. (Paragraph 2.1, Elective Home Education, Departmental guidance for local authorities, April 2019)

What happened

29. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
30. Mrs X requested an EHC Needs Assessment for Y in June 2024. She wanted Y to go to a special school due to his struggles with mainstream school.
31. The Council’s decision panel considered Mrs X’s request on 11 July 2024. The panel felt more evidence from the graduated approach should be implemented and reviewed before agreeing an EHC Needs Assessment. It encouraged the school to seek involvement from external professionals like Specialist Teacher or an EP to identify Y’s SEN needs and what interventions to take. It also advised the school to consider using the Council’s Inclusion and Engagement Support Team.
32. Mrs X appealed against the Council’s decision to the Tribunal. The appeal process started in September 2024.
33. The Council conceded the appeal in December 2024, and the Tribunal issued a Consent Order on 18 December.
34. The Council wrote to Mrs X on 20 January 2025, confirming it would complete an EHC Needs Assessment for Y. It said if it did not agree to issue an EHC Plan, it would let Mrs X know by 26 February 2025 (within 16 weeks). If it agreed to issue an EHC Plan, it would issue the final plan by 26 March 2025 (within 20 weeks).
35. Mrs X emailed Y’s case worker on 3 February. She said Y was not in school the previous week and is starting a part-time timetable as he is struggling in a mainstream setting. Y has autism and was struggling with his mental health, affecting his bowel condition. Mrs X asked for assurances as to when the Council would start Y’s EHC Needs Assessment before she requests alternative provision. She said Y’s current school tried a short stay school, but they would not accept Y as he does not like change.
36. The case worker told Mrs X the Council had requested an EP assessment but unfortunately there are significant delays with this process. They shared information about the national shortage of EPs, and efforts the Council was making to ease the backlog. This included commissioning associate and private EPs. They directed Mrs X to the complaint process. The case worker also said Y’s school remained responsible for making reasonable adjustments to meet his needs and they would need to liaise directly with the Alternative Provision service if this is the avenue Mrs X or the school wanted to explore. They also said schools can commission an EP report.
37. Mrs X complained to the Council on 3 February 2025. She said Y has autism and is in a mainstream school that cannot meet his needs. It took the Council until December 2024 to concede the appeal. She has not needed to submit any further information, so the Council should be able to reach a decision, but the assessment has still not started. She said Y is in year 6 and will soon be without a school due to the Council’s delays. Mrs X said she had been asking for alternative provision since Christmas, but no one wanted to fund this.
38. Mrs X then emailed the caseworker back. She said she had contacted the complaint team and her local MP. She said Y is unlawfully missing out on education. She asked for alternative provision and was told she had to fund it as the school could not. The school did try a short stay school, but they would not accept Y due to his autism. She asked how long the EP delays are.
39. The case worker said they could not comment on the timescales for the EP service. They shared some standard information about EPs being allocated in date order, unless there was an urgent need, such as a safeguarding risk.
40. The Council sent its stage one complaint response on 4 March 2025. It said it was facing unprecedented demand for psychological advice towards EHC Needs Assessments, and this was a national issue. It said it was unable to keep up with demand and could not give a timescale. It estimated an EP would see Y in the autumn term. It apologised for the lack of information and communication from its inclusion team. It recognised the importance of the timescales in the SEND code of practice, and that it failed to meet the deadline to confirm whether it will issue an EHC Plan for Y. The Council did not comment on Y’s school attendance or Mrs X’s request for alternative provision.
41. Mrs X asked to escalate her complaint the same day. She said Y was in desperate need of an EHC Plan as he was due to start high school in September. She said he would not be accepted into a mainstream school, and she would not put him through that. She said the Council failed to adhere to the statutory timeframe for Y’s assessment. She also said Y is currently not getting a full education due to his struggles at mainstream school. She said she emailed the caseworker multiple times but got no response.
42. An education support advisor observed Y in class at school 6 March 2025. They then made recommendations on strategies to support him. This was to be reviewed on 30 April.
43. Mrs X took Y off roll from school on 25 March 2025.
44. The Council received a referral for EHE from Y’s school on 4 April 2025.
45. Mrs X emailed the Council on 2 June after receiving a letter about Y having home education. Mrs X confirmed she deregistered Y from school as a temporary measure due to the Council’s delays with his EHC Plan. She said it was a last resort, and she had no other choice. Y’s school tried many things to help but nothing worked as Y needs a specialist school. She also confirmed she was educating Y at home, but he needed a specialist school.
46. The Council sent its final complaint response on 16 June 2025. It said it wrote to Mrs X on 20 January 2025, confirming it would assess Y following her appeal. It then had until 28 April 2025 to complete the assessment process. It had not yet completed the assessment, which it apologised for. It said this was due to unprecedented demand for assessments and increased demand for the EP service. It responded to this by recruiting and training EPs and using private EPs. However, despite these measures, there is still a national shortage, and the Government is aware of the issue. It said Y was on the waiting list and would be seen by an EP as soon as possible. While it apologised for the delays, the Council said it was still within the statutory timeframe at the time of Mrs X’s complaint.
47. On Y’s school attendance, the Council said its attendance team contacted the school to discuss his needs and what support can be provided to reintegrate him. School advised Y is currently home educated. The Council therefore said it could not consider this element of Mrs X’s complaint since the Council is not involved in Y’s education. It said if Mrs X would like Y to rejoin a school she can apply for a place.
48. An officer from the Council’s EHE service telephoned Mrs X on 19 June. They noted Y still awaited an EP assessment. Mrs X said Y’s school gave her four options, one was EHE. None of the other options were viable so Mrs X felt she had no choice. Mrs X said she was tailoring Y’s home education around his needs, doing a lot of hands-on activities as he does not cope well with a book or in front of a screen. The officer offered to send through a list of online resources, which Mrs X accepted. The officer said they would contact the Council’s inclusion team, so they know EHE is only interim, not through choice, and not a long-term option.
49. The officer sent an internal email querying who could deal with the matter, as nothing seemed to have been done on Y’s case since March.
50. They were advised that Y’s former school could have arranged the EP assessment, but as Y is not on roll at a school, Mrs X would have to wait for the Council to arrange it.
51. On 29 July, the officer queried whether Y was on the waiting list for an EP assessment, and how long this might take.
52. The Council’s inclusion service said on 27 August that it was facing unprecedented demand for EP reports. They confirmed Y was on the waiting list and it was estimated he would be seen in late Autumn. The inclusion service said it put measures in place to reduce waiting times and invested in agency EP support and associate EPs.
53. Mrs X emailed the officer on 29 August asking how she could request alternative provision for Y. She said the Council’s EHC Needs Assessment took a year and Y needs an education.
54. The officer made internal enquiries with their manager about alternative provision support.
55. On 17 September, the manager said the Council would need to see information on Y’s medical needs showing they cannot be met in a mainstream school. The inclusion service would then present this to the Council’s panel for a decision.
56. The officer emailed Mrs X advising her of the Council’s panel process. They asked why Y’s education was unsuitable and for details of Y’s medical needs.
57. Mrs X said the Council should hold this information as it was used for the Tribunal process. She said she had to refer Y back to the mental health service as he was struggling. She said he was not medically equipped to be in mainstream school; he was attending two hours a day and hid under tables in the library. If he was outside with other children fights would start. He cannot cope in this environment. The school put lots of things in place, but they did not work due to his Autism and sensory needs. His bowel condition also got worse due to anxiety. Mrs X said she tried some home education groups, but they failed as the other children are not like Y. Mrs X also sent supporting evidence.
58. An EHE manager confirmed to the officer on 21 September that they believe Y met the threshold for alternative provision, but they needed to discuss it with the SEND service and understand the process, as they did not want to put provision in place which Mrs X might think is permanent and will not ever get Y back into school.
59. The Council received Y’s EP report in December 2025. It then issued Y’s draft EHC Plan in January 2026.

My investigation

60. Mrs X told me Y has not had any education for over a year. Before that he attended school a few hours a day on a part-time timetable. This was to try to reduce his stress, but it did not work. Mrs X said school struggled to keep Y safe and she took him out for his own safety.
61. Mrs X said she was forced to de-register Y from school in March 2025, but she did not want to. The school gave her three options, either move Y to a smaller mainstream school, send him to a behaviour specialist school, or home educate him. Mrs X said moving to a smaller mainstream school was pointless, and the behaviour specialist school would not accept Y due to his autism.
62. Mrs X said it got to the point where they could not get Y into school even with all the suggestions in place. His behaviour escalated, he refused to go into the classroom, so the headteacher asked her to send an email saying she would home educate him but make it clear it was temporary while the Council assessed Y. Mrs X said she did not want to do it but was forced to as she had no help.
63. Mrs X said the Council’s home education service contacted her for an initial assessment but then left her alone as they knew it was meant to be a temporary measure. She thought the Council was putting alternative provision in place, but she heard nothing more about it. Mrs X said she has not been providing Y any education at home.
64. The Council accepted there were significant delays progressing Y’s EHC Needs Assessment and issuing his final EHC Plan. It said the Tribunal’s Consent Order of 18 December 2024 required it to undertake an assessment under section 36(8) Children and Families Act 2014. However, the Council did not receive the Educational Psychology (EP) assessment until 15 December 2025.
65. The Council said it undertook measures including recruitment and commissioning of additional EP capacity, though these were not sufficient to prevent delay in this case.
66. The Council understood Mrs X chose to EHE Y during this time, following deregistration from school. The Council’s records state that although EHE was a last resort, Mrs X had opted for it and was providing home education. Subsequent contacts recorded in the case notes confirmed Mrs X continued to express the intention to remain with EHE.
67. The Council said that while it regrets the delays, it does not consider it had a duty to provider alternative provision because Mrs X maintained her intention to EHE.

Analysis

EHC Needs Assessment

68. The Council should have taken no more than twenty weeks to conclude its EHC Needs Assessment for Y. The Council has still not issued Y’s final EHC Plan, more than twelve months later.
69. There were initially significant delays from the EP service which were outside the Council’s control. I found the Council did make attempts to minimise the delays, and the initial delays therefore amount to service failure. This is still classed as fault, but the Council was not to blame.
70. However, despite the Council receiving Y’s EP report in December 2025, four months later and it has still not issued the final EHC Plan. That is a significant further delay and is fault. This caused frustration and uncertainty to the family.
71. In these circumstances, we ask councils to provide a remedy of £100 for each month outside the statutory timescales which continues up to the point Mrs X receives a right of appeal. This is up to a maximum of six months after our final decision.

Alternative provision

72. The Council was aware in February 2025 that Y was struggling, had not been in school, and was starting a part-time timetable. Mrs X also raised the question of alternative provision to Y’s caseworker in February 2025, and via the Council’s formal complaint service at the same time. She said a mainstream school could not meet Y’s needs.
73. Y’s caseworker directed Mrs X to the school for support or reasonable adjustments. The Council’s complaint service did not address the issue of alternative provision, and I have not seen evidence the Council considered its responsibilities in this regard at that time. The Council’s first complaint response in March 2025 did not address the issues with Y’s attendance or alternative provision. That was a missed opportunity. If the Council had acted at that time Mrs X could have been properly supported before being forced into a decision to home educate Y. At the very least, the Council should have contacted the school to discuss what steps it had taken to support Y, in order to then consider whether it had a duty to provide alternative provision at that time or whether further support from school could be attempted. That was fault.
74. There was a delay of about six weeks with the Council’s stage two response complaint response. When Mrs X escalated her complaint, Y was still on roll at school, but not properly attending or accessing education. By the time the Council responded to the stage two complaint, the situation had moved on, and Mrs X had taken Y off roll. If the Council had investigated Y’s school attendance promptly at stage two, it could have spoken with the school and properly informed Mrs X about her options. Alternative provision could also have been explored. That was another missed opportunity and was fault.
75. By the time of the Council’s final complaint response on 16 June, Mrs X had taken Y off roll at school, so the Council would not consider his attendance or alternative provision. That was fault. By then, Mrs X had told the Council the reason she took Y off roll from school. It was a last resort as she felt she had no other choice or options. She also said measures attempted by the school failed and Y needed a specialist school. Government guidance confirms EHE works when it is a positive, informed and dedicated choice. That was clearly not the case here. The guidance also confirms councils still have a moral obligation to ensure suitable education, and councils should offer alternative provision in any circumstances where a child cannot attend school.
76. The Council’s EHE service contacted Mrs X later in June 2025. They recorded that Mrs X’s decision to home educate Y was not through choice and was not a long-term option. The records I have seen from the Council shows officers then considered whether to give Y alternative provision, with one officer recording their belief that Y qualified for it. However, despite this, the Council did not offer alternative provision and did not confirm any decision to Mrs X. That was fault.
77. The Council told me it did not have a duty to offer alternative provision because Y is EHE, and Mrs X maintained her intention to do so. That was fault. Mrs X made several requests for alternative provision and consistently stated the decision to home educate was not made through choice, but because there were no other options and mainstream school was not suitable for Y. Once the Council knew Mrs X had only decided to home educate Y due to concerns mainstream education could not meet his needs, it should have properly considered whether Y required alternative provision, in line with its section 19 duty.
78. We cannot say, even on balance, what education Y should have received before the final EHC Plan is issued, as this sets out Y’s special educational needs and what would be needed to meet them. Mrs X has been caused uncertainty about what education Y could have received if the Council had properly considered its section 19 duty at the earliest opportunity. This uncertainty is an injustice to Mrs X and Y.

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Agreed Action

79. Within four weeks of my final decision, the Council will:
• Pay Mrs X £1,200 to recognise the frustration and uncertainty caused so far by its delays issuing Y’s final EHC Plan.
• Pay Mrs X £100 per month until the time it issues Y’s final EHC Plan, up to a maximum of six months.
• Apologise to Mrs X for failing to properly consider its section 19 duty to give Y alternative provision and pay her £500 to recognise the uncertainty this caused.
• Consider whether it should put alternative provision in place for Y now, and provide Mrs X with a written decision.
80. Within three months of my final decision, the Council will:
• Remind all staff in the SEND and complaints service of the need to liaise with schools promptly where there is a request for alternative provision.
• Remind all SEND staff that if they become aware that a parent has electively home educated their child, or intends to, not for reasons of preference but because of concerns their current education is not meeting their child’s needs, that the Council must consider whether it owes the child a section 19 duty.
81. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

82. I found the Council at fault for delays and for failing to properly consider its duty to provide alternative provision.

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Investigator's decision on behalf of the Ombudsman