Summary: The Council carried out the Education, Health and Care (EHC) needs assessment without fault. The Council was at fault for failing to consider its section 19 duty after Mr X told the Council his child (Y) was not attending school. The Council has agreed to apologise and make a symbolic payment to remedy the distress, frustration and uncertainty caused.

The complaint

1. Mr X complained the Council failed:
• to consider its section 19 duty after he told the Council the school placement allocated to Y was unsuitable and he would not be attending; and
• to issue the draft EHC Plan within timescales.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 statement 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. Mr X complained the Council refused to carry out an EHC needs assessment when he originally requested this in December 2024. I have not investigated this part of Mr X’s complaint because he had a right of appeal to the SEND tribunal against the Council’s decision. It was reasonable for Mr X to use his right of appeal.

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How I considered this complaint

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. Mr 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

Section 19

9. 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.
10. 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)
11. 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.

12. 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.

EHC Plans

13. 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. 
14. 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. 
• 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.
• 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).

Elective home education

15. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
16. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.

What happened

17. Mr X has a child of primary school age who has special educational needs. In late 2024, the family moved from abroad to England. Mr X requested the Council to undertake an EHC needs assessment in December 2024. The Council rejected the request.
18. The Council allocated Y a mainstream school for January 2025 as Mr X had not made any school applications. Mr X told the Council he would not be sending him to a mainstream school as it could not meet his needs and requested a specialist placement.
19. In February 2025, Mr X made another request for the Council to carry out an EHC needs assessment and provided more supporting evidence. The Council agreed to carry out the assessment. The Council should have issued the draft EHC Plan at the end of May and the final EHC Plan at the end of June.
20. The same month Mr X made a complaint the Council:
• Delayed carrying out the EHC needs assessment; and
• Had offered Y a mainstream placement when he required a specialist one.
21. The Council issued a final complaint response saying:
• The EHC needs assessment process would determine if Y needed a specialist placement; and
• Y needs to be in school so the school staff could fully assess his needs and the SEN support he required in the meantime.
22. In May 2025, the Council emailed Mr X to say it understood that he was home educating Y and asked him to complete a form stating what education Y was receiving at home.
23. Mr X responded with the education Y was receiving but told the Council this was not elective home education. The Council emailed back to confirm this constituted suitable full-time education. Mr X told the Council again, while Y was receiving an education at home, this was not elective home education. Mr X said they were only providing education because the Council had made no suitable placement available and said the Council should fulfil its section 19 duty.
24. Mr X remained dissatisfied with the Council’s handling of the matter and complained to us.
25. Following Mr X’s complaint to us, the Council issued the draft EHC Plan at the start of June 2025 and the final EHC Plan at the end of June 2025 naming a mainstream school. Mr X appealed the Plan and also moved to a new area covered by a separate Council.

My findings

EHC needs assessment delays

26. Mr X complained the Council failed to issue the draft EHC Plan within timescales. There is no statutory deadline in the law for the Council to issue a draft EHC Plan by. However, the Council should issue the draft Plan at least 15 days prior to the 20-week statutory deadline. This is so a parent or carer has an opportunity to comment on the draft before it issues a final EHC Plan. The Council did this and met the 20-week statutory timescale for issuing the final EHC Plan. The Council was not at fault.

Section 19 duty

27. Mr X told the Council in January 2025 that he would not be sending Y to the mainstream school it had allocated as it was unsuitable and could not meet Y’s needs. The Council should have considered the reasons for Y’s absence from school and made a written evidence-based decision about whether it had a section 19 duty and needed to arrange alternative educational provision. The Council did not do this which was fault. This caused Mr X distress, frustration and uncertainty about whether the Council owed a section 19 duty to Y and what educational provision Y was entitled to.
28. In May 2025, the Council contacted Mr X to make further enquiries about whether he was electively home educating Y. Mr X was clear that he was not and said the Council should fulfil its section 19 duty. This was another missed opportunity for the Council to consider and make a written decision about this.

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Action

29. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mr X and pay him £200 to recognise the distress, frustration and uncertainty caused by the Council’s failure to consider whether it had a section 19 duty to Mr X’s child.
30. Within three months of the final decision, the Council has agreed to:
1. Create an action plan to ensure the Council makes and stores clear and accurate records of section 19 decision making for children out of school.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman