Summary: Miss X complains the Council has not dealt properly with her son Y’s education. The Council is at fault because it did not comply with statutory timescales when it produced Y’s Education Health and Care (EHC) Plan. Miss X suffered a delay to receiving her right of appeal and the delay caused Y to miss Special Educational Needs (SEN) provision. The Council has agreed to apologise, make a payment to Miss X and make service improvements.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council did not deal properly with her son Y’s education properly between November 2023 and February 2025 because it:
• failed to properly consider and provide alternative education provision for Y.
• Did not comply with statutory timescales in relation to Y’s EHCP issued in July 2024.
2. Miss X says Y has missed educational opportunity and she has suffered avoidable distress and delayed appeal right.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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(i), as amended)
8. 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

9. I have investigated that part of Miss X’s complaint about how the Council has dealt with her request for alternative education and not complying with statutory timescales between May 2024 to July 2024.
10. I have not investigated any matters before May 2024 as this was more than 12 months before Miss X’s complaint to the Ombudsman.
11. I have not investigated any matters after July 2024 as these are out of the Ombudsman’s jurisdiction because Miss X has the right of appeal to SEND Tribunal about the educational placement named in Y’s EHC plan.

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How I considered this complaint

12. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
13. 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

Law, guidance and policies

Alternative education

14. 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.
15. 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)
16. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will 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”. (R (on the application of DS) v Wolverhampton City Council 2017)
17. 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.
18. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
19. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
20. 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”.
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. 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)
23. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Education Health and Care Plans

24. 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. 
25. 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)

26. 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.

27. 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.
28. 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)

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.

The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

29. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

What happened?

30. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
31. Y attended School A from November 2023. At the end of November there was an incident where Y was unaccounted for and missing while at School A.
32. Y stopped attending School A from 30 November 2023.
33. In mid December 2023 School A completed a request to the Council for an Education Health and Care Plan Needs Assessment (EHCNA).
34. The Council agreed to complete an assessment for Y in January 2024.
35. Miss X requested to Electively Home Educate (EHE) Y in late January 2024.
36. The Council decided to issue an EHC Plan and name a specialist setting in late March 2024.
37. In May 2024 the Council issued a draft EHC Plan to Miss X.
38. After consulting Miss X and reviewing her response to the draft EHC Plan the Council issued a final EHC Plan in July 2024.

Analysis

Alternative education

39. The Council says, “No referral was received to the Section 19 medical panel from the school that Y was attending prior to his ECH plan being issued. As such, there was no Section 19 assessment or support was initiated by the Council.“
40. The Council received a request to electively home educate Y from January 2024. I have seen a copy of the referral form completed by the school which includes the text of an email from Miss X explicitly requesting elective home education.
41. The Council was under no obligation to consider the provision of alternative home education for Y between May and July 2024. This is not fault by the Council.

Statutory timescales

42. The Council accepts there was a delay to issuing Y’s EHC Plan.
43. The EHCNA request was made to the Council on 19 December 2023.
44. The 20 week deadline from this date, as per paragraph 24, should have been 7 May 2024. Y’s EHC Plan was issued on 19 July 2024.
45. There was therefore a delay of 10 weeks and three days to the issuing of Y’s EHC Plan. This is fault by the Council. Miss X suffered injustice as a result because her appeal rights were delayed and X missed a short period of special educational needs provision.

The Ombudsman’s Guidance on Remedies

46. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.

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Action

47. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Miss X for the fault found. 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 Miss X £1,500 in respect of missed special education provision and delays to appeal rights.
• Produce an action plan to demonstrate how the council will meet statutory timescales for needs assessments and issuing EHC Plans.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. 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