Summary: The Council was at fault for delays completing a child’s Education, Health and Care needs assessment and for not properly considering whether it had a duty to provide the child with alternative education. This meant the child had to wait much longer than they should have to get a finalised Education, Health and Care Plan. To remedy the injustice caused the Council agreed to apologise and make a payment to the complainant.

The complaint

1. Ms X complains the Council:
• Delayed carrying out and Education, Health and Care needs assessment for her child and delayed issuing a final Education, Health and Care (EHC) Plan.
• Did not provide her child with alternative education when they were out of school.
2. Ms X says the many delays have significantly impacted her family and child who has not received the support they should have.

Back to top

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 the 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. 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)

Back to top

What I have and have not investigated

6. I have investigated Ms X’s concerns up until March 2025, as this was when the Council issued a final EHC Plan. If Ms X has concerns about the education and special educational provision provided to her child after the Council issued the final EHC Plan she should make a new complaint to the Council in the first instance.

Back to top

How I considered this complaint

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Law and guidance

10. 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.
11. 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).
12. Section 19 of the Education Act 1996 says that councils 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.
13. 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.
14. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
15. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.

What happened

16. On 4 January 2024, Ms X asked the Council to carry out an EHC needs assessment for her child, Y. The Council told Ms X on 7 February 2024, it would carry out an assessment.
17. In March 2024, Ms X said Y stopped attending school. Y was registered at a mainstream school.
18. On 30 June 2024, the Council obtained advice from an Educational Psychologist (EP) for Y. In September 2024 the Council told Ms X it would issue an EHC Plan for Y and sent her a copy of a draft EHC Plan.
19. Ms X complained to the Council on 24 September 2024. Ms X complained about the time taken to carry out the EHC needs assessment and that the Council had not done this within the statutory timeframes.
20. On 20 November 2024, the Council responded to Ms X’s complaint at stage one of its process. The Council upheld Ms X’s complaint. The Council explained the delays had been as a result of the national shortage of EP’s and it took a long time to get the EP advice it needed to progress the assessment.
21. In early December 2024, Ms X asked the Council to consider her complaint at the next stage of its process. Ms X said she had still not received a final EHC Plan from the Council. Ms X also told the Council Y had been out of school from March 2024 and no suitable education was in place.
22. On 10 December 2024, the Council provided its final response to Ms X ‘s complaint. The Council said it had already upheld the complaint at stage one and further investigation would not lead to a different outcome.
23. On 12 March 2025, the Council provided Ms X with Y’s final EHC Plan.

Analysis

EHC needs assessment

24. Ms X asked for an EHC needs assessment on 4 January 2024. The Council issued her with decision within the statutory timeframe of six weeks telling her it agreed to carry out an assessment.
25. The Council should have told Ms X whether it would issue an EHC Plan for Y within 16 weeks of 4 January 2025, so by 25 April 2024. It took until 25 September 2024 for the Council to give Ms X a decision it would issue a final EHC Plan for Y. This was fault.
26. While the Council said in its complaint response the delays were due to getting EP advice, it took three months from getting EP advice to issue a draft EHC Plan and then a further 6 months to issue a final EHC Plan. The Council should have issued Y’s final EHC Plan by 23 May 2024. It did not issue the final Plan until 12 March 2025,10 months late. This was fault.
27. As a result of these delays Y has had to wait a significantly longer time than they should have to receive a completed EHC Plan.
28. Normally when we have cases where there are delays due to getting advice from EPs, we recommend £100 per month to recognise the frustration and uncertainty caused to the family by the delay. In this case I can say there were four months of delay as a result of the time taken to get EP advice.
29. Once the Council received the EP advice in June 2024, we would expect a Council to issue a final EHC Plan within 6-8 weeks, so by July/August 2024 in this case. I have looked at the EP advice the Council received and the provision listed in this advice is basically the same provision contained in Y’s final EHC Plan. I am satisfied, on balance, that if the Council had not delayed issuing the final EHC Plan after receiving the EP advice, Y should have had the provision in their EHC Plan in place by August 2024 at the latest.

Alternative provision

30. Ms X said Y stopped attending school in March 2024. I cannot see that the Council was aware of this at the time. Ms X confirmed she did not report Y’s absence to the Council.
31. In June 2024, the Council received EP advice for Y’s EHC needs assessment. The EP advice stated Y was not attending school. At this stage the Council should have decided whether it owed a duty to provide Y with alternative education. Failure to do so was fault.
32. When Ms X asked the Council to consider her complaint at stage two of its process, she mentioned Y was not getting suitable alternative education. The Council did not respond to this part of Ms X’s complaint. This was fault and a further missed opportunity for the Council to clarify its position on whether it had to provide alternative education to Y.
33. In response to my enquiries on this case the Council said it believed the school placement available for Y was suitable. I cannot see from June 2024 onwards evidence that the Council formally considered this and communicated its position to Ms X. This was fault. If this was the Council’s view, it should have kept Y’s situation under review. I cannot see evidence it did this.
34. I cannot say on balance whether the Council would have decided to provide Y with alternative education had it properly considered this when it should have. This is because there are too many factors such as whether Y could have received suitable support from their school to help them reintegrate or access learning. However Ms X and Y have been caused uncertainty by the Council’s failure to properly make this decision. This is an injustice to them.

Back to top

Agreed Action

35. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Ms X for the injustice caused by the above faults. 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 Ms X £400 to recognise the frustration and uncertainty caused as a result of the delays to obtain EP advice. I have calculated this at £100 per month.
• Pay Ms X £1,200 to recognise the loss of special educational provision to Y between August 2024 and March 2025. I have calculated this at £200 per month.
• Pay Ms X £500 to recognise the uncertainty caused to her and Y because of the Council’s failure to properly consider whether it owed Y a duty to provide alternative education after it became aware they were not attending school.
36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

I find fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman