Summary: Miss X complained the Council failed to provide Z with suitable alternative education provision when Z was unable to attend school. Miss X also complained the Council delayed completing Z’s Education, Health and Care (EHC) needs assessment, and about the Council’s communication and complaints handling. We have found the Council at fault for failing to properly consider its section 19 duty and for failing to maintain adequate oversight of Z’s educational arrangements. We have also found the Council at fault for a delay in issuing Z’s EHC Plan and for its complaints handling. We find the Council’s faults caused periods of missed educational provision, as well as avoidable uncertainty and frustration. The Council has agreed to apologise and pay a symbolic financial remedy. The Council will also act to improve its services. There are parts of Miss X’s complaint we have not investigated. We explain why in our statement.

The complaint

1. Miss X complained the Council:
1. Failed to provide her child, Z, with suitable alternative education provision when Z could not attend school for health reasons.
2. Breached statutory timescales for completing an Education, Health and Care (EHC) needs assessment and delayed issuing Z’s EHC Plan.
3. Showed poor communication and complaints handling.
2. Miss X said the Council’s faults negatively affected Z’s wellbeing and educational attainment. Miss X also said her own wellbeing was adversely affected and she incurred financial expense due to the Council’s faults. Miss X wanted the Council to reimburse her costs, complete Z’s delayed needs assessment and issue an EHC Plan, and put in place suitable educational provision.

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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. 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)
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. 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)
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. 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.
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)

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What I have and have not investigated

10. Part of Miss X’s complaint concerns the Council’s decision not to carry out an EHC needs assessment in May 2023 and a lack of suitable education provision for Z in the 2022/23 and 2023/24 academic years.
11. The Council’s decision not to assess Z’s needs came with a right of appeal to the SEND Tribunal, which I understand Miss X exercised. Paragraphs 7 and 20-23 set out the Ombudsman’s jurisdiction where a relevant right of appeal exists. This restriction applies and I cannot consider the Council’s decision not to assess Z’s needs in 2023.
12. Paragraph 5 sets out the Ombudsman’s jurisdiction to consider historic complaints. Miss X approached the Ombudsman in May 2025 and so events before May 2024 are considered late. I have not identified a good reason Miss X could not have complained about these matters sooner. The restriction therefore applies and I have not considered a complaint about Z’s lack of suitable education provision in the 2022/23 academic year and the majority of the 2023/24 academic year.
13. While I have not investigated these events, I refer to some of them in the statement to provide context.
14. I have considered events from the point Miss X sought a new EHC needs assessment in June 2024. This is because this event marks the start of the delay in completing the needs assessment, and because this request should have given the Council cause to again consider whether Z’s education provision was suitable and if its section 19 duty applied.
15. I have considered events up to May 2025, as this was the point at which Miss X approached the Ombudsman. Events occurring after this time have not yet been put to the Council as a complaint. The restriction in paragraph 6 applies.

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How I considered this complaint

16. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
17. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
18. 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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Relevant legislation, policy and guidance

Timescale and process for EHC needs assessment

19. 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 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).

Appeal rights and the Ombudsman’s jurisdiction

20. There is a right of appeal to the Tribunal against a council’s decision not to carry out an EHC needs assessment or reassessment.
21. 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)
22. 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.
23. 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.

Alternative provision

24. 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.
25. 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)
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;
• choose (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.

Part-time timetables

29. 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. 

Council’s complaints procedure

30. The Council has a two-stage complaints procedure, which it publishes on its website:
• At stage one, the Council says it will respond to complaints it receives within 20 working days. It says if it needs longer, it will contact complainants to explain this.
• At stage two, the Council again says it will respond to complaints it receives within 20 working days. The Council will notify complainants if it needs more time to respond.

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What I found

Key events

31. In 2023, Miss X said she applied to the Council for an EHC needs assessment for her child, Z. Miss X said the Council refused, leading Miss X to appeal this decision to the SEND Tribunal. Miss X said this resulted in the Council agreeing to provide a higher level of funding to School J to meet Z’s needs, as well as Z receiving some online tuition for periods when Z could not attend school. However, the Council did not issue an EHC Plan for Z.
32. Miss X said the online tuition provided for Z gradually phased out over the course of the 2023/24 academic year. Miss X said Z was not attending School J and so she again asked the Council to assess Z’s needs in June 2024. Miss X said the Council agreed to assess Z’s needs. The Council said it sent Miss X an email confirming this decision. However, the Council sent the email to an invalid email address and Miss X did not receive this.
33. The Council has provided records that show around this time, Z’s attendance at School J stood at approximately 37%. School J said it began working with Z in July 2024 to understand what approach would help reintegrate Z back into attending School J.
34. Records seen show School J agreed a part-time timetable for Z, to commence from 4 October 2024, with Z attending Emotionally Based School Non-Attendance (EBSNA) lessons. The timetable was reviewed in November 2024 and an amended part-time timetable was agreed from 3 December 2024. This increased the number of lessons, with a review due at the end of the month. School J suggested Z was generally attending in line with the part-time timetable, though Z’s attendance began to decrease when School J attempted to increase the number of lessons. Z stopped attending School J in December 2024.
35. On 12 January 2025, Miss X complained to the Council:
• Miss X said it had been 26 weeks since the Council decided to assess Z’s needs, but there had been no update since then.
• Miss X said Z had not attended School J for a prolonged period, losing out on education provision. Miss X said she had sought additional support and tuition for Z, but her requests had been ignored. Miss X said she did not know who to contact and Z had been left to support herself.
36. Records show School J reviewed Z’s part-time timetable on 26 February 2025, implementing it the same day. However, Z continued not to attend School J.
37. On 27 February 2025, the Council responded:
• The Council apologised for the delay in issuing Z’s EHC Plan. It cited the high number of requests for assessments and a shortage of educational psychologists (EPs) as the reason for this delay. The Council said it was trying to recruit more EPs, creating new positions and using locum staff to alleviate the delays. The Council said it could not yet provide a timescale for when it would complete Z’s assessment.
• The Council said Z had been attending School J for one hour per day up to December 2024, meeting with an EBSNA caseworker, but this had stopped at the beginning of the spring term. The Council referred to Z also attending an alternative provision provider one day per week. The Council noted Miss X had previously sought a one-to-one tutor, and that School J had tried online tuition, though said this had ultimately not been successful. The Council said Miss X’s request for a tutor would be discussed further.
• The Council upheld Miss X’s complaint.
38. On 27 February 2025, Miss X asked the Council to escalate her complaint:
• Miss X said the Council’s response to her complaint was late.
• Miss X said Z attended an alternative provision setting for two hours each week, receiving mental and emotional support. While this worked well, Miss X said Z received no academic study at these sessions.
• Miss X said she incurred costs for resources and activities while Z was not attending school. Miss X said the circumstances caused financial difficulty, affecting Miss X’s own wellbeing and the wellbeing of Z’s siblings.
• Miss X said the Council had never sent her a written confirmation of its decision to assess Z’s needs, so she was having to take the Council at its word.
• Miss X wanted the Council to consider financial reimbursement for costs and for the distress experienced. Miss X also wanted the Council to complete Z’s needs assessment and put in place suitable provision, including a tutor, until it could issue Z’s EHC Plan.
39. On 27 March 2025, the Council re-sent its email confirming its decision to assess Z’s needs to Miss X. I understand around this time, Z began to attend School J again on a reduced part-time timetable.
40. On 25 April 2025, School J agreed an amended part-time timetable from 28 April 2025. The review noted Z struggled to consistently attend School J.
41. On 7 May 2025, the Council sent its stage two complaint response:
• On its delayed response to Miss X’s stage one complaint, the Council said it had written to Miss X to explain it needed more time to respond, which its policy confirmed it could do. It did not uphold this part of Miss X’s complaint.
• The Council accepted it had missed the deadline to issue Z’s EHC Plan. It again referred to the lack of EPs and an increase in the demand for needs assessments as the cause. The Council said it could not ask an EP to prioritise Z’s assessment, as there were many other young people in the same position.
• The Council confirmed it sent the written confirmation of its decision to assess Z’s needs to an invalid email address. It said because the address was invalid, it had not breached anybody’s data. However, it said it should have acted on the invalid address notification at the time, but did not. It upheld Miss X’s complaint about the delay in sending this notification.
• The Council noted Miss X said Z had been unable to attend School J at all since December 2024. It offered £900 in recognition of Z’s missed education provision for the spring term. It also offered Miss X £250 for the time and trouble incurred. The Council said it upheld Miss X’s complaint overall.
42. In July 2025, the Council received the EP report for Z.
43. In September 2025, the Council issued Z’s EHC Plan.

Analysis

Did the Council act with fault?

EHC needs assessment

44. Paragraph 19 sets out the statutory timescales for completing an EHC needs assessment. The Council received the request for a needs assessment for Z on 5 June 2024. In its complaint response, the Council correctly identified it should have issued Z’s EHC Plan on or around 22 October 2024. The Council did not issue Z’s EHC Plan until 22 September 2025, a delay of around 11 months.
45. The Council attributed this delay to a lack of EPs, which limited its capacity to complete needs assessments on time. The available evidence suggests this was the main cause of the delay: Z’s EHC Plan shows the Council received the EP’s report in July 2025 and was then able to issue the EHC Plan about eight weeks later.
46. The Council remains statutorily responsible for the timely administration of the assessment procedure. I have found the Council acted with fault, via service failure.

Communication and complaints handling

47. Paragraph 30 sets out the timescales associated with the Council’s complaints procedure.
48. The Council took 33 working days to respond to Miss X’s stage one complaint, a delay of 13 working days. The Council wrote to Miss X on 10 February 2025 to explain its response would be delayed and apologised for this. The Council’s contact and apology was appropriate, and in accordance with its published policy. I have not therefore found the Council at fault for this.
49. The Council took 47 days to respond to Miss X’s stage two complaint, a delay of 27 working days. I have seen no evidence the Council contacted Miss X to explain this would happen. I have found the Council at fault for its delay in responding to Miss X’s stage two complaint.
50. Miss X said she incurred costs for learning resources for the period Z could not attend School J. The Council did not address this point in its final complaint response. I have found the Council at fault for this.
51. The Council recognised it acted with fault when it failed to properly communicate its decision to assess Z’s needs, sending it to an invalid email address. I agree with the Council’s conclusions and make the same finding.

Alternative provision

52. The evidence viewed suggests the Council delegated its duty to make decisions on alternative provision, and duty to secure a suitable education for Z, to School J. However, the Council remains responsible for these decisions and actions, even if another body delivers them on its behalf. The Council must be able to show it maintained oversight of these decisions and properly considered its duties.
53. The evidence I have seen shows the Council did not maintain proper oversight of what was happening with Z’s education, despite being regularly notified of Z’s consistently low attendance and School J’s sustained reliance on part-time timetables. There are several distinct points where the Council had notice of what was happening, but cannot show it considered whether it had a duty to act under section 19:
• Miss X sought an EHC needs assessment in June 2024. In its complaint responses, the Council confirmed it received this, but could not provide a copy to the Ombudsman. On the balance of probabilities, I believe this request provided notification that Z was not attending school. This is because I have seen testimony from School J confirming Z’s attendance at this time was around 37%. The request for a needs assessment was most likely based on, and would have highlighted, Z’s minimal attendance. The Council did not consider its section 19 duty at this point.
• Between October 2024 and May 2025, School J devised and implemented four part-time timetables. Each time a timetable was implemented, School J produced a document confirming the arrangements. According to the wording on these documents, the Council received notification each time. School J therefore notified the Council on four occasions that Z was not receiving full-time education provision. I have seen no evidence the Council considered whether it needed to intervene, pursuant to its section 19 duty, at any point. This is particularly the case given that guidance says prolonged use of part-time timetables is likely to be unsuitable, as set out in paragraph 29.
• More broadly, the Council appears not to have actively sought information about Z’s attendance, or School J’s considerations, until it collated this information to provide to the Ombudsman in early 2026. For example, it did not refer to Z’s multiple part-time timetables, or School J’s assessment of Z’s circumstances, in its complaint responses, but later obtained this information and supplied it to the Ombudsman to consider. This further reinforces a general lack of oversight by the Council.
54. For these reasons, I have found the Council at fault for failing to properly consider its section 19 duty on several occasions. I have also found the Council at fault for failing to maintain effective oversight of Z’s educational arrangements.

Did the Council’s faults cause an injustice?

55. The Council’s delay in completing the EHC needs assessment caused avoidable frustration and uncertainty. This delay also meant Miss X did not receive her right to appeal to the SEND Tribunal when she should have. The avoidable frustration and uncertainty, and the frustrated appeal rights, are injustices. I have recommended the Council act to recognise this.
56. As set out above, the Council failed to maintain oversight of Z’s educational provision, and failed to properly consider its duty under section 19, at several different points throughout the 2024/25 academic year. I have sought to assess what would likely have happened, on the balance of probabilities, had the Council acted without fault. Having done so, I have determined the Council’s fault would likely have had a different impact at different points:
• Had the Council considered its section 19 duty in June 2024, I believe it likely it would have decided it did owe Z a duty to arrange suitable alternative education provision. This is because School J confirmed Z’s attendance at this time was minimal and that EBSNA lessons did not begin until October 2024. This means Z received little-to-no suitable educational provision between June and September 2024, broadly the equivalent of an academic term, excluding the holidays. This lack of suitable educational provision is an injustice.
• In October 2024, School J planned and implemented a part-time timetable for Z, with the intention of reintegrating Z back into the school setting full time. School J reviewed and adjusted this part-time timetable in November 2024, with a view to increasing Z’s provision and overall attendance. School J said it made these adjustments based on its assessment of Z’s wellbeing and overall capacity to engage with learning. Had the Council considered its section 19 duty between October and December 2024, I believe it would have decided it did not owe Z a section 19 duty. This is because it would likely have endorsed School J’s assessment of Z’s capacity and its approach to attempting reintegration, which would take some weeks to show sustained success. The Council’s fault during this period did not therefore cause an injustice, as the outcome would have been the same.
• Between January and March 2025, Z stopped attending School J. School J reviewed and amended the part-time timetable, though it is commonly accepted Z did not attend. Had the Council considered its section 19 duty during this period, I believe it would have decided it did owe Z a duty to arrange suitable alternative provision. This is because Z could not attend School J to benefit from the provision on offer and so received no suitable education during this period. This is an injustice. The Council has already accepted it owed Z a duty during this period.
• From March 2025, School J again implemented a reduced part-time timetable. School J said Z’s attendance from then was about 30%. School J said it maintained an approach of low engagement to protect Z’s mental health, as Z had struggled with its previous attempts to increase provision in December 2024. Had the Council considered its section 19 duty during this period, I think there is uncertainty about what it would have decided. While it may again have endorsed School J’s judgements and decisions, the prolonged use of a part-time timetable may also have led it to decide a different approach was needed. There are too many variables for me to say what would likely have happened, even on the balance of probabilities. This causes uncertainty, which is an injustice in itself.
57. I therefore find the Council’s faults caused Z injustice, in the form of missed suitable education provision between July and September 2024, and between January and March 2025. I also find there is uncertainty about whether the Council would have decided the provision Z received between March and May 2025 was suitable for Z at the time. This uncertainty is an injustice.
58. The Council offered Miss X £900 to recognise a term of missed provision. This figure is within the Ombudsman’s Guidance on Remedies, which I note positively. However, this figure is at the bottom end of the Ombudsman’s guidance. It is unclear how the Council determined this figure was appropriate, given it is commonly agreed Z did not receive any academic education provision during the term in question.
59. The proposed remedy also does not address the injustice identified for the other periods.
60. Miss X said she incurred costs for educational resources during the period Z could not attend School J. The Council did not address this point in its complaint response, meaning Miss X did not receive a full response to her complaint. This caused avoidable frustration, which is an injustice.
61. The Council failing to properly consider its section 19 duty, or failing to maintain oversight of part-time education arrangements, could cause injustice to others in the future, if not addressed.

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Action

62. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Miss X and Z for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our published Guidance on Remedies.
2. Consider the findings of this investigation and identify ways to ensure it maintains oversight of education for students with reported low attendance and/or on part-time timetables, giving due consideration to whether its section 19 duty applies. The Council should then write to the Ombudsman to set out its findings and conclusions, along with any service improvements it proposes to make.
3. Pay a symbolic financial remedy of £3500 to recognise the injustice identified in this statement. This is broken down as follows:
1. £2200 for Z’s loss of education provision between June 2024 and September 2024, and January 2025 and March 2025. This is a figure of £1100 per term, for a period equivalent to around two academic terms. This would include the £900 the Council already offered. I have considered the Ombudsman’s Guidance on Remedies when recommending this figure: I have considered Z is a young person with special educational needs, who did not receive the equivalent of full-time education in this period, which was not a key academic transition year. Z did not have an EHC Plan at the time of the events complained of.
2. £200 to recognise the uncertainty caused by the Council failing to properly consider its section 19 duty between March and May 2025. I have considered the Ombudsman’s Guidance on remedies, which defines uncertainty as a form of distress.
3. £1100 to recognise the injustice caused by the delay in issuing Z’s final EHC Plan and providing Miss X’s right of appeal. This is £100 per month of delay for 11 months. This would include the £250 the Council already offered. I have considered the Ombudsman’s Guidance on Remedies and recommendations made in similar cases.
63. The Council should provide us with evidence it has complied with the above actions.

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Decision

64. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman