Summary: We found fault with the Council delaying outside the statutory timescales producing Mrs X’s child’s Education, Health and Care Plan. We also found fault with the Council failing to consider the suitability of Mrs X’s child’s access to education for three months. The Council agreed to apologise to Mrs X and pay her symbolic financial payments for the injustice the Council’s fault caused to Mrs X and her child.

The complaint

1. Mrs X complained the Council delayed issuing her child’s Education, Health and Care Plan.
2. Mrs X also complained the Council failed to provide suitable alternative provision of education for her child who could not attend school.
3. Mrs X says the Council’s actions have caused a loss of education for her child and a loss of earnings for herself with distress to her and her family.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
9. 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)
10. 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

11. I have investigated Mrs X’s complaint until September 2025, with the real term impact of this on Mrs X’s child being until the end of the academic year 2024/2025.
12. In June 2025, the Council produced an amended Final Education, Health and Care Plan for Mrs X’s child. This Plan included naming a specialist school placement from July 2025. If Mrs X had any concerns about the suitability of this school placement, it was appropriate for Mrs X to appeal this to the Tribunal.
13. The Council provided its second stage two complaint response to Mrs X at the start of September 2025. This coincided with Mrs X’s child having only recently started at the new specialist school placement. This created a significant change in circumstances and means any concerns Mrs X had from this point would be the subject of a new complaint. Mrs X would need to raise such concerns with the Council first to give them opportunity to respond before the Ombudsman could investigate.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. 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 found

Relevant law and guidance

EHC Plan

16. A child or young person with special educational needs may have an 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. 
17. 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 decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• 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.
  (Delete irrelevant bullet points)

18. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). 

Section 19

19. Section 19 of the Education Act 1996 says that the council 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.
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.

Complaint handling

23. The Council has a two-stage complaint process.
24. The Council’s process says that at both stage one and stage two, it will provide a response to a person within 20 working days of contact. The Council says it will let a person know if it needs longer than 20 working days to provide a response.

What happened

25. In May 2024, Mrs X contacted the Council to advise her child, Y, was not attending school. Mrs X asked the Council to consider its Section 19 duty to provide education for Y. At this time, Y had been almost entirely absent from school since the start of March 2024 and remained absent until the end of the academic year 2023/2024.
26. The Council responded to Mrs X to advise she needs to approach the school in order for it to make a referral to the Council for it to consider Y’s absence from school and whether it owes a Section 19 duty to Y. The Council offered to contact the school on Ms X’s behalf.
27. In June 2024, Mrs X made a request for an EHC Plan Needs assessment for Y. The Council agreed to complete an assessment in July 2024.
28. In September 2024, Y’s school held a Team Around the Family Meeting. The school confirmed Y was on a reduced timetable, which started in September 2024, including access to English on a 1:1 basis, Physical Education, Maths and some Geography and Art classes. The notes from the meeting outlined the plan to improve access to education moving forwards.
29. Y’s school held a further Team Around the Family Meeting in October 2024. The notes from this meeting include references of Y wanting to attend full English lessons and confirmation of the Emotional Based School Avoidance work completed in the community.
30. In November 2024, the Council raised concerns with the school that Y’s reduced timetable was not progressing. The Team Around the Family meeting noted a stop in Y’s attendance at Geography lessons and the school agreed to make a referral to medical tuition.
31. Mrs X made a formal complaint to the Council at the end of November 2024 about the Council’s failure to complete the EHC Plan needs assessment.
32. Y stopped attending school entirely in December 2024. The medical tuition school also rejected the referral for Y.
33. The Council provided a complaint response to Mrs X and acknowledged the delay in production of Y’s EHC Plan. The Council said this was because of a national shortage of Educational Psychologists.
34. In January 2025, Mrs X sought consideration of her complaint at stage two. Mrs X told the Council Y was only attending school two days each week for one-hour lessons. Mrs X asked the Council to use an Educational Psychologist report obtained in May 2024 to produce Y’s EHC Plan.
35. The Council became aware later in January 2025 that Y had stopped attending school entirely. The Council confirmed this with Y’s school who confirmed Y’s attendance was only slightly above 10% for the academic year.
36. The Council issued a stage two complaint response to Mrs X in February 2025. The Council said it would issue an EHC Plan using the Educational Psychologist report from May 2024 and upheld the complaint about the delay.
37. Mrs X made a further complaint to the Council in March 2025. Mrs X said the Council had failed to provide alternative provision of education for Y since they stopped attending school in December 2024. Mrs X said despite contact with the Council in January 2025 and February 2025 it had not made any progress in providing education.
38. The Council held a multi-agency review of Y’s education at the end of March 2025.
39. The Council issued a Final EHC Plan for Y in April 2025. The Council outlined the Section F provision Y should receive and named Y’s current school placement in Section I.
40. The Council also issued a stage one complaint response to Mrs X. The Council said:
• It apologised for the delayed response to Mrs X’s complaint.
• Y was currently enrolled at the school named in their EHC Plan and considered this school had offered suitable educational opportunities to meet Y’s needs.
• It would continue to consult with other schools to meet Y’s needs but still considered the current school placement could meet Y’s needs in the meantime.
41. In May 2025, a Special Educational Needs (SEN) school confirmed it could provide a place for Y from July 2025. In June 2025, the Council updated Y’s EHC Plan to name this placement in Section I of Y’s EHC Plan.
42. Mrs X sought consideration of her complaint at stage two of the Council’s complaints process in August 2025. Mrs X said she did not receive a stage one complaint response and complained the Council had failed to provide section 19 alternative provision of education for Y.
43. In September 2025, the Council issued a stage two complaint response. The Council said:
• It offered the provision outlined in the stage one response to Mrs X and Y to provide a flexible and graduated approach to re-engagement with education.
• It acknowledges these offers of education have not been accessible or suitable for Y. However, it considered it maintained ongoing efforts to identify and offer suitable education for Y despite these not resulting in successful engagement.
• It has now found a suitable placement at an SEN school for Y which Y has now started to attend.

Analysis

EHC Plan needs assessment

44. Mrs X asked for an EHC Plan needs assessment of Y in June 2024. The Council had six weeks to decide whether to complete an assessment of Y. The Council met this deadline when it agreed to assess Y in July 2024. I do not find fault with the Council.
45. Since the Council agreed to assess Y for an EHC Plan, and later went on to issue a Final EHC Plan for Y, the Council had until mid-October 2024 to produce a Final EHC Plan. The Council failed to issue a Final EHC Plan until mid-April 2025. This was a delay of six months outside the statutory timescales and was fault.
46. The Council’s initial delay outside the statutory timescales of three and a half months was because of delayed EP advice. This service failure came about because of an increase in requests for EHC needs assessments and not enough EPs to meet the demand.
47. When the Council agreed to use the May 2024 EP advice, any further delay was not through the lack of EP input. The Council took a further two and a half months to finalise Y’s EHC Plan when it was already outside the statutory timescales. This caused a delay to Y receiving the provision in their EHC Plan and delayed any appeal rights about the content of the EHC Plan.

Access to education

48. When Mrs X contacted the Council in May 2024 about Y’s absence from school, and requesting the Council consider its Section 19 duty, the Council had a duty to act. The Council should have considered all reasons for Y’s absence from school and communicated its decision to Mrs X about whether it would arrange alternative provision of education. Instead, the Council directed Mrs X back to the school without making a formal decision. While the Council offered to contact the Council on Mrs X’s behalf, the Council fell short of meeting its Section 19 duty to consider Y’s access to education from May 2024 until the end of the academic year. This was fault.
49. Y started a reduced timetable in September 2024 and the Council was aware of this. The Council has shown it kept a review of Y’s reduced timetable through the Team Around the Family meetings and worked with Y’s school for the reintegration plans through direct input with Y’s school.
50. Y was accessing some education in the Autumn 2024/2025 term and, at first, this was showing a positive impact on Y before the situation worsened at the end of the term.
51. The Council kept Y’s access to education under review in the Autumn term of 2024/2025 and Y was still access education, albeit on a reduced timetable. I do not find fault with the Council’s actions at that time.
52. In January 2025, the Council confirmed with Y’s school that Y’s attendance had stopped entirely despite the educational provision on offer.
53. Following confirmation with Y’s school, the Council should have considered whether it had a section 19 duty to provide alternative provision of education for Y. For the same reasons detailed in paragraph 47, the Council was at fault as it did not properly consider whether it owed a section 19 duty to Y for three months, until April 2025, when it responded to Mrs X’s complaint. This has caused Mrs X distress, frustration and uncertainty about whether Y should have received alternative educational provision.
54. In April 2025, the Council decided the education on offer at Y’s school was suitable and accessible to Y. This was a decision the Council was entitled to make. At about the same time the Council confirmed it considered Y had access to suitable education at their current school, the Council issued a Final EHC Plan naming this school in Section I. As explained in paragraphs 6 and 11, If Mrs X disagreed with the suitability of this school placement, it was appropriate for her to appeal this to the SEND tribunal.
55. The Council continued to try to find a suitable school placement for Y and placed Y at a new school in July 2024, updating Y’s EHC Plan in the process. Again, if Mrs X disagreed with this school placement, it was appropriate for her to appeal to the SEND tribunal.
56. I do not find fault with the Council’s actions relating to Y’s access to education from mid-April 2025 until the end point of my investigation at the end of the academic year 2024/2025.

Service improvements

57. Following a previous Ombudsman decision, the Council is already undertaking service improvements relevant to this case. The Council is completing a comprehensive review of SEND processes including increasing the number of EPs and enhancing the capacity of the Council's SEND team. This work is underway and continues to be under review by the Ombudsman. I do not consider further service improvements would add to the work already underway.

Complaint handling

58. The Council handled two separate complaints from Mrs X, relevant to this decision, through its complaint process. The Council responded to the first stage one complaint within its complaint timescales and both of the stage two responses. However, the Council delayed by three weeks outside its complaint timescales responding to Mrs X’s second stage one complaint; this was fault.
59. The Council acknowledged its delays in its second stage one response and apologised to Mrs X. I consider this apology from the Council is enough to address any injustice caused by this fault.

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Action

60. Within one month of the Ombudsman’s final decision the Council will:
1. Apologise to Mrs X for the delays in issuing Y’s final Education, Health and Care Plan and its failure to properly consider whether it owed a section 19 duty to Y;
2. Pay Mrs X £350 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in issuing Y with an Education, Health and Care Plan caused by the delay in obtaining advice from an Educational Psychologist;
3. Pay Mrs X £400 to recognise Y’s loss of opportunity to receive provision in line with Y’s Education, Health and Care Plan between February and April 2025 caused by the delay in issuing the final Education, Health and Care Plan after it had agreed to use the previous Educational Psychologist advice obtained; and
4. Pay Mrs X £400 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s failure to properly consider whether it owed Y a section 19 duty for a total of five months across two separate time periods.
61. The Council should provide us with evidence it has complied with the above actions.

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Decision

62. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman