Summary: We found fault with the Council delaying outside the statutory timescales in completing the Education, Health and Needs Care Plan assessment by two months causing frustration and uncertainty to Ms X. We also found fault with the Council failing to suitability consider its Section 19 duty to Ms X’s child from October 2024 to the end of April 2025. This caused Ms X’s child to miss a suitable education. The Council agreed to pay Ms X £200 for the delays and £1,800 for the missed education in recognition of the injustice the Council’s fault caused.

The complaint

1. Ms X complained the Council failed to provide suitable education for her child.
2. Ms X also complained the Council delayed issuing her child with an Education, Health and Care (EHC) Plan and failed to find her child a suitable school.

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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 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).
4. 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).
5. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. 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.
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(i), 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 Ms X’s complaint from the start of 2024 until September 2025 about delays in production of her child’s EHC Plan and their access to a suitable education.
12. I have not investigated matters before the start of 2024 because this was beyond 12 months from Ms X bringing her complaint to the Ombudsman. While Ms X says her child has had issues with education since 2021, the first contact with the Council was in January 2024. Matters before this date would be a complaint about the school which is outside the Ombudsman’s jurisdiction to investigate.
13. I have not investigated the naming of the school placement in Ms X’s child’s EHC Plan. This is because the content of a child’s EHC Plan is appealable to the SEND Tribunal; this would be the appropriate body to consider any concerns about the naming of a child’s educational placement in an EHC Plan.
14. I have ended my investigation in September 2025. The Council issued its complaint response in April 2025 and refused progression of the complaint in May 2025, directly Ms X to the Ombudsman. Investigating up to September 2025 allowed the Council suitable time to follow through on promises it made in its complaint response. Matters since this date would be the subject of a new complaint to the Council.

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How I considered this complaint

15. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
16. Ms X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and regulations

EHC Plans

17. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. 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. 
18. 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).  

19. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
20. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
21. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Alternative provision of education

22. 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.
23. 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)
24. 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))
25. 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)
26. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
27. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• consider (based on all the evidence) whether to require attendance at school or provide the child with suitable Alternative Provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

28. 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.
29. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child is absent for non-medical reasons. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence.
30. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

31. In January 2024, the school for Ms X’s child, who I shall refer to as Y, contacted the Council about Y’s attendance difficulties and difficulty in engaging with education.
32. From January 2024 to April 2024, the Council arranged for a Complex Communication Specialist Practitioner to work with Y to help with attendance difficulties. This practitioner met with Y four times with the notes from the final meeting in April 2024 including Y saying they “wanted to be in school learning”.
33. The Council also arranged a Complex Communication Team teacher to support Y from March 2024 to May 2024 with six sessions arranged. The Complex Communication Team teacher outlined the support they considered the school should provide Y to help with attendance and education. They told the school to contact the Council’s attendance and inclusion panel if Y’s attendance continued to decline.
34. On 21 May 2024, Y’s school submitted an EHC Plan Needs Assessment application to the Council for Y. As part of the application, the school confirmed that Y was beginning to attend school on a more regular basis but spending most of their time in the SEND department. The school said it needed extra support to engage Y in education.
35. The Council decided not to assess Y for an EHC Plan on 11 July 2024. The Council told the school and Ms X about its decision. The Council said it considered Y’s needs could be met in the school. The Council said Y’s attendance could be supported by the school using the strategies provided by the Complex Communication Specialist Practitioner and Complex Communication Team teacher. The Council outlined how Y’s school could seek extra support.
36. In August 2024, Ms X made a request for mediation. Before the mediation meeting, Ms X provided new medical evidence to the Council on 1 October 2024 which confirmed Y had anxiety. This medical evidence said Y was “not currently in a state of mind where Y is able to access education fully” and asked the Council to refer Y to the Hospital and Home Tuition service.
37. The Council agreed to assess Y for an EHC Plan on 10 October 2024 and confirmed this with Ms X.
38. Ms X asked the Council on January 2025 for an update on production of the EHC Plan and advised Y had been out of education for some time. The Council responded to advise it was still working on production of the EHC Plan and was waiting on Educational Psychologist advice. The Council said it would contact Y’s school to see what educational provision was on offer.
39. Following an Educational Psychologist assessment, the Council produced a Final EHC Plan for Y on 18 March 2025. The Final EHC Plan confirmed Y had not attended school since January 2025 with low attendance since the start of the school year. The Council named Y’s school in Section I of the EHC Plan. The Council outlined Ms X’s right of appeal about the content of the EHC Plan.
40. Ms X liaised with the Council about the educational placement named in the EHC Plan. The Council reiterated Ms X’s appeal rights to the SEND Tribunal.
41. Ms X made a formal complaint to the Council at the end of March 2025. Ms X said Y had been out of education without a suitable pathway back into education. Ms X also complained the Council delayed production of Y’s EHC Plan and naming the current school in Section I of the EHC Plan. Ms X acknowledged the tribunal was the next step to dispute the school placement.
42. The Council provided a Stage One complaint response in April 2025. The Council said:
• It took too long to produce Y’s EHC Plan because of delays in obtaining Educational Psychologist advice.
• Its pathways for supporting children with extended non-attendance did not lead to Y securing full-time access to education.
• It delayed in communicating with Ms X about the EHC Plan process and Y’s access to education.
• It apologised for the delays and lack of responses and outlined how it was working with the University to train more Educational Psychologists.
• It would look to secure a comprehensive education package for Y as soon as possible including through home tuition with a specific provider, Provider 1.
43. At the end of April 2025, Y started to access some alternative provision of education with Provider 2. The Council also made a referral for tutoring and mentoring but this did not start.
44. In May 2025, Ms X sought consideration of her complaint at Stage Two and liaised with the Council about the alternative provision of education on offer. The Council rejected Ms X’s request for consideration at Stage Two of its process and directed Ms X to the Ombudsman. The Council explored provision with Provider 1 and this started on 10 June 2025.
45. Following consultation with Ms X in July 2025, the Council consolidated Y’s alternative provision of education into one package of 12.5 hours each week with Provider 1, starting in September 2025.

Analysis

EHC Plan delays

46. Since Ms X made an EHC Plan Needs Assessment application for Y on 21 May 2024, the Council had six weeks, until 2 July 2024, to decide whether to complete an assessment of Y. The Council decided not to assess Y on 11 July 2024. This was one week outside the statutory timescales and was fault. While this delay was fault, this is only a short delay outside the statutory timescales and I do not consider this caused a significant personal injustice to Ms X.
47. The Council acted appropriately in July 2024 to provide Ms X with information about appealing its decision and about mediation. The Council entered mediation with Ms X on her request. I do not find fault with the Council’s actions at this stage. Ultimately, the Council reached a decision to assess Y for an EHC Plan without completing a formal mediation meeting because Ms X provided new evidence. The Council acted without fault in relation to the EHC Plan process from 11 July 2024 to 10 October 2024.
48. From 10 October 2024, the Council had a further 14 weeks to issue a Final EHC Plan for Y, until 16 January 2025. The Council only produced the Final EHC Plan on 18 March 2025; this was a delay of nine weeks and was fault.
49. The Council has advised the reason for the delay in completing Y’s EHC Plan Needs Assessment is because of a lack of available resources of Educational Psychologists. The Ombudsman is aware of a national shortage of Educational Psychologists causing a delay for many councils in completing EHC Plan Needs Assessments. While this explains the delay by the Council in producing Y’s EHC Plan Needs Assessment, this delay is still a service failure.
50. The Ombudsman’s approach to EHC Plan Needs Assessment delays caused by a lack of Educational Psychologists is to award £100 for each month outside the statutory timescale. The Ombudsman would recommend a council pays this award up to the point a person receives a right of appeal, reference or review. This would be the date the Council either refuses to issue an EHC Plan or issues a Final EHC Plan. The £100 per month payment is a symbolic payment to recognise the frustration and uncertainty caused by the delay. For Ms X, this delay totalled nine weeks, which is about two months.

Y’s education

51. It is not the role of the Ombudsman to investigate the actions of a school. I could not find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school. For Ms X’s complaint, this means I do not find the Council at fault for its actions before January 2024.
52. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process.
53. The first contact to make the Council aware of Y’s attendance issues was in January 2024. The Council acted appropriately from January 2024 to July 2024 to consider its Section 19 duty for Y. The Council considered Y’s individual circumstances by arranging two different specialists to work with Y to promote attendance and academic engagement. These specialists provided input to Y’s school about how it could support Y and provided advice to Y’s school about how to seek extra support from the Council if needed.
54. The Council ultimately decided in July 2024 that Y’s school was suitable and accessible education for Y following its interventions and support offered. The Council was entitled to make this decision and it followed the correct process and legislation in doing so; I do not find fault with the Council.
55. There was no further contact from Y’s school or Ms X about Y’s access to education from July 2024 until October 2024 outside the mediation about declining Y’s EHC Plan. Without further contact, including new information or evidence, the Council would have no reason to revisit its previous decision.
56. However, Ms X provided new information to the Council on 1 October 2024. This was medical evidence that highlighted concerns about Y’s inability to access education and asked the Council to consider referral to the Hospital and Home Tuition service. While the Council re-engaged the EHC Plan Needs Assessment process, it did not refer Y to the Hospital and Home Tuition service and failed to reconsider Y’s access to education based on this new evidence. This was fault.
57. The Council failed to suitably consider or act on its Section 19 duty again until it put in place alternative provision of education for Y on 30 April 2025. The Council should have reconsidered it Section 19 duty within six working days of the new evidence, being 9 October 2024. This meant the Council delayed for slightly over one and a half terms in suitability considering its Section 19 duty to Y. When the Council did consider its Section 19 duty again, it arranged alternative provision of education for Y. This means the Council’s inaction and delay has directly caused lost education for Y.
58. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
59. Having considered Y’s individual circumstances, including the access to some education pre-January 2025 and then a lack of any education from January 2025, I consider the Council should pay Mrs X a total of £1,800 for Y’s missed education from 1 October 2024 to 30 April 2025.
60. From 30 April 2025, the Council put in place alternative provision of education for Y. The Council kept this provision under review, increasing it in June 2025 to include Provider 1 and then amending it again in September 2025 to be exclusively provided by Provider 1. The Council has acted appropriately to consider Y’s educational needs, put in place alternative provision of education, kept this under regular review and adapted this as needed. I do not find fault with the Council from 30 April 2025 until the end date of my investigation in September 2025.

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Action

61. Within one month of the Ombudsman’s final decision the Council will:
• Provide a payment to Ms X of £200 to recognise the frustration and uncertainty caused by the nine week (two month) delay outside the statutory timescales in completing Y’s Education, Health and Care Plan assessment caused by a delayed Educational Psychologist input.
• Provide a payment of £1,800 to Ms X in recognition of the impact of Y’s missed education on Y from October 2024 to the end of April 2025.
62. The Council should provide us with evidence it has complied with the above actions.

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Decision

63. 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