Summary: Mrs X complained the Council delayed the production of her son’s Education, Health and Care Plan and failed to provide him with suitable education when he could not attend school. We find the Council at fault for a delay in completing the statutory assessment process and for not being able to evidence how it made decisions about alternative provision. This caused distress, frustration and missed education. The Council has agreed to apologise and provide a symbolic payment to Mrs X.

The complaint

1. The complainant, Mrs X, complains the Council delayed the production of her son, B’s, Education, Health and Care (EHC) Plan and, when produced, this was flawed as it was out-of-date. Mrs X also complains the Council failed to provide suitable education for B who could not attend school from January 2023. Mrs X also complains B did not receive the provision in his plan from March 2025.

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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 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)
3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)
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. 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)
7. 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

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 an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I have and have not investigated

10. 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 EHC Plan in March 2025. This did not name a placement for B but gave the type of school as ‘local maintained mainstream secondary school or academy’. Mrs X considered the plan was out of date and no longer reflected B’s needs and sought education otherwise than at school (EOTAS). Mrs X had a right of appeal about the content of the EHCP. I consider it would have been reasonable for Mrs X to have used this right.
11. 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.
12. For this reason, I have not investigated the part of Mrs X’s complaint which relates to the Council providing B with access to education after the EHC Plan was issued in March 2025. My investigation looks at the Council’s process for completing the EHC needs assessment and its consideration of its section 19 duty between January 2023 and March 2025.

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What I found

Relevant law and guidance

Education, Health and Care Plans and timescales

13. 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. 
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 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 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).

Children out of school and alternative provision

15. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
16. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
17. 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 education provision.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
19. 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)
20. 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)
21. 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])

Part-time timetables

22. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
23. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
24. 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.

What happened

25. The following is a summary of key events. It does not include everything that happened.
26. B started attending school A in September 2022 on a reduced timetable. The plan was a graduated approach to increase his timetable to full time.
27. The Council received a referral from the school about B’s attendance on 7 February 2023. This noted a period of unauthorised absence from 4 January 2023. A penalty notice (PN) was issued on 12 April.
28. The Council subsequently met with Mrs X and the school on 25 April to discuss B’s attendance and needs and the education that could be provided to meet those needs. Mrs X highlighted that the school had not supported B and was unhappy they had issued a PN as she had provided a note from B’s GP. The school accepted the PN was issued in error and this was subsequently removed. A plan was agreed going forward to support B.
29. Mrs X sought an EHC needs assessment for B on 6 July. This request was not actioned by the Council. The Council has acknowledged the request was not forwarded to the appropriate team internally.
30. B started to attend school again in September with weekly sessions which continued until March 2024.
31. Mrs X contacted the Council on 31 October as she had not received a response to her July request. The Council confirmed on 1 November 2023 that the original request had not been actioned but it would now start the EHC process.
32. The Council notified Mrs X on 6 December that it would proceed with an EHC needs assessment. The assessment process was significantly delayed due to the national shortage of educational psychologists (EPs).
33. An EP report was produced in November 2024. The Council notified Mrs X on 21 November 2024 that it would issue an EHCP. A draft EHCP was issued to Mrs X on 5 December. Mrs X sought education otherwise than at school (EOTAS) as she considered B would not be able to attend any setting.
34. Mrs X contacted the Council on 29 January 2025 to say B remained out of school and was still not being provided with suitable work despite repeated requests. Mrs X outlined advice she had received that B should have been receiving online learning or a home tutor after he had been off school for 15 days. Mrs X sought a home tutor to allow B to catch up on the missed learning.
35. The Council contacted the school for an update and spoke with Mrs X on 8 February. The Council arranged a further meeting with the school and Mrs X to discuss a blended learning package. It was confirmed the school had a tutor ready but this needed to be discussed to see if it would work for B and would be for a short period to ensure he was not overloaded. Other support strategies were also discussed.
36. The final EHCP dated 12 March 2025 was sent to Mrs X on 13 March. This did not name a placement for B but gave the type of school as ‘local maintained mainstream secondary school or academy’. The covering letter set out Mrs X’s right of appeal. The provision focussed on a small steps approach to build up to in-person social situations to support B leaving the home and a gradual transition to an educational setting with an individual curriculum. Once back in an education setting the focus was on classroom support and teaching strategies.
37. Mrs X complained to the Council on 13 March about delay in the EHCP process and that there had been no reply to her requests for EOTAS.
38. The Council responded to Mrs X’s complaint at Stage 1 of its complaint procedure on 26 March. The Council apologised that it had failed to keep to the statutory timescales for the EHC needs assessment and for poor communication. The Council explained the staffing issues and national lack of EPs it was facing and that it had plans in place to try and address the issue. The Council noted it had now sent a final EHCP. The Council further noted Mrs X’s requests for EOTAS but that it was considering other options first.
39. Mrs X escalated her complaint on 27 March. The Council provided a response at Stage 2 of its complaint procedure on 25 April. The Council upheld Mrs X’s complaint and apologised for both the delays and difficulties in communication. The Council agreed to:

• commission an EP reassessment and for that report to update B’s EHCP so that it more accurately reflected his current needs and the provision required to meet those needs
• directly commission B’s home tutor and seek to increase the hours per week in consultation with Mrs X and B so as not to overwhelm B (using the existing tutor if possible)

40. The Council also asked Mrs X if she wished to explore the option of a particular school placement or EOTAS. Once this had been decided and the updated EP assessment it would proceed to finalise the EHCP which would determine how provision would be delivered. Mrs X responded the same day to confirm the Council should proceed with EOTAS.
41. Mrs X complained to the Ombudsman on 4 May 2025. Mrs X has confirmed that B started to receive home tuition in April 2024 of 1 hour each week. This was increased to 2 hours each week in the summer of 2024 and was increased in April 2025 to 3 hours a week following her complaint.

My consideration

42. During a significant portion of the period considered, Mrs X’s request for an EHC Plan ran in parallel with her request for alternative education provision. The investigation is limited to considering the role of the Council. We cannot consider the actions of the school as they are outside our jurisdiction to investigate.

EHC needs assessment

43. A council should issue a decision about whether it will agree to issue a plan or not within 16 weeks, and if it agrees to issue a plan, it has a further four weeks to do so (a total of 20 weeks).
44. Mrs X sought an EHC needs assessment for B on 6 July 2023. This request was not actioned by the Council until 31 October. This initial delay is fault.
45. There followed delay from 31 October 2023 to 21 November 2024. I acknowledge the shortage of EPs caused the delay; however statutory guidance is clear with timeframes and the Council failed to meet this. This is fault in the form of service failure (see Paragraph 3). There was also a further delay before the Council issued a final EHC plan on 13 March 2025 which is fault.
46. The Council should have issued a final plan by 23 November 2023. Therefore, the total delay is some 15 months. This caused Mrs X distress and frustration as she had to wait longer than necessary for the decision and delayed her appeal rights. I have made a recommendation in line with our Guidance on Remedies to remedy this.
47. The Council has an action plan in place to reduce backlogs caused by the lack of EPs. We are monitoring this, and it is not necessary to recommend further service improvements on this part.

Alternative provision

48. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively. This means that once the Council was alerted to B’s absence on 7 February 2023 it needed to consider its legal duties and take action where appropriate.
49. However, just because a child does not attend school does not necessarily mean the Council has a duty to make alternative, full-time arrangements. The Council needed to consider whether B was receiving a suitable education, and whether this education was “reasonably available and accessible” to him.
50. In its response to the Ombudsman, the Council says it initially considered the education provided by school A was meeting B’s needs. But it acknowledged that due to B being supported by several teams at the same time there was not enough of a joined-up approach to meeting his needs whilst going through the statutory assessment process.
51. There was a delay between early February 2023 when the Council became aware that B was not attending school and its meeting with Mrs X and the school towards the end of April. I consider this to be fault. Following this meeting, a plan was put in place to support B. However, there is no evidence of robust oversight by the Council including regular reviews of the support and education being provided to B to decide if this remained suitable and accessible to B. It was not until February 2025, after Mrs X had raised concerns about B remaining out of school and the lack of suitable education that the Council sought an update from the school. I consider it at fault, causing injustice with B’s limited provision during that period.
52. In reaching my view on the appropriate remedy for this element of the complaint, I have taken into account that B had struggled with a part-time timetable and did receive some provision during the relevant period. There is also uncertainty over what level of alternative provision B would have been able to access.
53. We have made recent decisions identifying similar fault around alternative provision where service improvement recommendations have already been made. These need time to embed so it is not necessary to make further recommendations.

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Action

54. The Council has agreed to take the following action within one month of my final decision:
1. apologise to Mrs X and B for the delay in issuing the final education, health and care plan and securing suitable, alternative provision;
2. make a symbolic payment of £1,500 to Mrs X to recognise her distress, frustration and uncertainty caused by the delay in issuing the final Education, Health and Care Plan; and
3. make a further symbolic payment of £2,700 to Mrs X to recognise the distress, frustration and loss of education caused by the delay in securing suitable alternative provision for B.
55. 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.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. 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