Summary: Mrs X complained the Council failed to issue her daughter’s EHC Plan within the statutory timescale, failed to make a decision on her requests for alternative provision and failed to make appropriate full time alternative provision. There is fault as the statutory timescale was not met and the Council did not consider the request for alternative provision which caused distress to Mrs X and her daughter. The Council agrees to reimburse the tuition costs paid by Mrs X.

The complaint

1. Mrs X complained the Council failed to issue her daughter's EHC Plan within the statutory timescale; failed to make a decision on her requests for alternative provision and failed to make appropriate full time alternative provision.
2. Mrs X says the situation have been stressful and she is out of pocket as a result of paying for private tutors.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. As explained at paragraphs13-15 below, we cannot consider a complaint where a right of appeal to a tribunal has been used and is linked to a disagreement about the education provision or the placement named in the EHC Plan. Mrs X submitted an appeal in January 2025 in respect of the EHC Plan issued on 30 December 2024.
7. This means that I can only consider the period before Mrs X’s rights of appeal engaged which is the period from 19 November to 30 December 2024. As well as the complaint about the failure to meet the statutory timescales to issue the EHC Plan.

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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 found

General section 19 duty

10. 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.
11. 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)

EHC Plan 

12. 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. 

Timescales and process for EHC assessment 

13. 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);  

Our jurisdiction when appeal rights have been used

14. 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)
15. 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.
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Key facts

17. This section sets out the key events in this case and is not intended to be a detailed chronology.
18. The Council received a request for an EHC needs assessment on 22 June 2024 and made the decision to proceed with the assessment by 30 July. The Council decided to issue an EHC Plan on 7 November. The Council told Mrs X that it would start writing the EHC Plan on 20 November and sought information from MRs X who responded on the same day.
19. Mrs X had told the Council on 18 November that her daughter had missed 15 days of school since September and the following day she requested alternative education provision under section 19 of the Education Act. A week later Mrs X told the Council she was paying for seven hours of education provision for her daughter and asked for an update.
20. On 27 November the Council apologised for not responding to her email dated 19 November and said the EHC Plan would be delayed due to the late submission of the Educational Psychologist’s advice. The request for section 19 provision was forwarded to a different team.
21. The Council issued a draft EHC Plan on 10 December and issued the final EHC Plan on 30 December. Mrs X submitted an appeal in respect of sections B, F and I on 1 January 2025.
22. In March 2025, the Council responded to a formal complaint submitted by Mrs X. The response dealt with the lack of education provision for Mrs X’s daughter and said action would be taken within five days. Mrs X escalated her complaint and the Council provided a further response on 6 May. The Council determined that the Section 19 duty had not been triggered in this case but that the Council failed to respond to Mrs X’s requests for alternative education. It found the lack of response and failure to consider the section 19 duty was fault. It noted that in March it had provided 10 hours of tutoring and an amended EHC Plan naming Mrs X’s preferred setting was issued. Mrs X’s daughter started at the new school on 22 April 2025. The Council also offered Mrs X a symbolic payment of £500 saying this was made in line with the Ombudsman’s guidance on remedies.

Analysis

23. The Council has accepted it failed to meet the statutory timescales to issue the EHC Plan for Mrs X’s daughter. This is fault. It should have issued the EHC Plan by 8 November but did not complete the process and issue the final EHC Plan until 30 December, over seven weeks late.
24. Mrs X notified the Council in November that her daughter had missed more than 15 days of school and asked it to provide alternative provision. Mrs X also commissioned and paid for private tutoring for her daughter.
25. The Council upheld Mrs X’s complaint about its failure to consider her request for alternative provision under section 19. It subsequently put in place 10 hours of tutoring. As explained above, I can only consider the period from November to 30 December. The Council accepted its failings and offered Mrs X a payment of £500.
26. Where there is a lack of education provision, the Ombudsman will recommend a reimbursement of the costs incurred by a parent in respect of education provision. Mrs X has provided evidence of the actual costs incurred between November and December 2024. This amounts to more than the £500 previously offered by the Council and so it is appropriate for us to recommended reimbursement of these costs.

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Action

27. To remedy the injustice caused to Mrs X and her daughter the Council will, within one month of my final decision, take the following action:
• Apologise to Ms X and her daughter for the fault identified. 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; and
• Make Mrs X a payment of £895.98 to cover the costs incurred to provide education for her daughter before appeal rights engaged.
28. The Council should provide us with evidence it has complied with the above actions.
29. I have decided not to make any service improvements in this case. In reaching this view I have taken account of the fact the Ombudsman has found fault in similar complaints about this Council this year and already made service improvements in relation to the failure to meet statutory timescales, the duty to provide alternative education provision and to ensure SEN officers make direct referrals to its Inclusion Support Service.

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Final decision

30. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman