Summary: The Council was at fault. It delayed issuing Miss X’s child, Y’s, Education, Health and Care Plan in line with the statutory timescales. It also failed to properly consider the education Y received between November 2024 and mid-December 2025. The Council will pay Miss X a symbolic payment for the frustration and her delayed appeal rights, apologise and pay Miss X a symbolic payment for the uncertainty it caused her. The Council will put in place a service improvement.

The complaint

1. Miss X complained the Council failed to issue her child, Y’s, Education, Health and Care (EHC) Plan within the statutory timescales following an EHC needs assessment request. As a result, Miss X said Y’s education and welfare suffered and it caused the whole family distress. Miss X said Y did not attend an education placement from November 2024 and she commissioned a private tutor for Y, causing a financial burden. Miss X wanted Y’s EHC needs assessment completed. She wanted Y’s EHC Plan to be issued and so Y would receive the correct support, provision and educational placement in time for Y to sit their GCSE’s.

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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. 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)
4. 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.
5. 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)
6. 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.
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

9. This investigation started in July 2024, a year before Miss X complained to us, and when Y’s school made the first Education, Health and Care (EHC) needs assessment request to the Council. The investigation ended in mid-December 2025 when the Council issued Y’s Final EHC Plan. After which Miss X had appeal rights to the special educational needs and disabilities (SEND) Tribunal.

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How I considered this complaint

10. I considered:
• the information Miss X provided;
• the information the Council provided and its response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care (EHC) Plans

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. Section F sets out the educational provision needed by the child or young person and Section I sets out the name and/or type of school.

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.
• 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.
• a council should decide if it will issue an EHC Plan within 16 weeks of the request for an assessment;
• 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.
14. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
15. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47).
16. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the Final EHC Plan. An appeal right only arises once a decision not to assess, issue or amend a plan has been made and sent to the parent or a Final EHC Plan has been issued.

Section 19 duty

17. Council’s 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. (Education Act 1996, Section 19). We refer to this as section 19 or alternative provision.
18. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’).
19. 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).

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.
1. 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.

Elective home education

21. Parents have a right to educate their children at home (Section 7, Education Act 1996). The term elective home education is used when a parent chooses to provide education for their children at home, instead of sending them to school full-time. There are no specific legal requirements for the content of home education, but it can include the use of tutors or parental support groups.

What happened

22. Y was of secondary school age and has special educational needs, autistic spectrum disorder (ASD), anxiety and social, emotional and mental health needs. Y was on roll at a mainstream secondary school, School 1. Y’s attendance at School 1 declined from Summer 2024. Y found attending School 1 difficult and their mental health deteriorated. Y did not have an Education, Health and Care (EHC) Plan in 2024.
23. In mid-July 2024 School 1 made Y’s Education, Health and Care (EHC) needs assessment request to the Council. The Council acknowledged the request in late July 2024.
24. In late August 2024 the Council sent Y’s mother, Miss X, a decision letter, stating it would not complete an EHC needs assessment for Y. It said the evidence submitted for Y’s special educational needs and disabilities (SEND) was limited. It said the provision could be delivered within a graduated response and School 1 could use the Assess Plan Do and Review (APDR) process which could be met through SEN support at School 1. It said referrals had already been made for Y for social, emotional and mental health (SEMH) needs and the impact of the provision would be reviewed through the APDR process. It gave Miss X her appeal rights to the SEND Tribunal which she did not exercise.
25. In mid-September 2024 Y attended a meeting with Child and Adolescent Mental Health Services (CAMHS) to discuss Y’s social anxiety. Y continued to struggle to attend School 1.
26. In late October 2024 School 1 submitted a Child Missing from Education form to the Council. The Council declined this because it considered School 1 needed to consider Y’s attendance issues first. School 1 told the Council Y’s mother, Miss X, was considering elective home education but no elective home education referral was received by the Council.
27. In mid-November 2024 Miss X attended a meeting at School 1 and she said Y found it hard to leave the house. Y stopped attending School 1. The next day School 1 made a second EHC needs assessment request for Y to the Council, the Council acknowledged the request in late November 2024.
28. In early December 2024 the Council agreed to complete an EHC needs assessment for Y. The Council sent letters to professionals asking for an assessment report. It also asked Miss X if she would like it to contact any relevant professionals and asked for her parental contribution to the process.
29. In late January 2025 the Council sent Miss X a decision letter. It said Y’s EHC needs assessment had been completed and it sent Miss X, Y’s draft EHC Plan.
30. In February 2025 the Council closed the child missing in education case and said Y was a child not in school.
31. In early May 2025 Miss X made a stage one complaint to the Council. She complained the Council had not issued Y’s Final EHC Plan within 20 weeks of submitting the EHC needs assessment request and said she wanted Y’s Final EHC Plan to be issued. Miss X said Y had not been allocated an educational psychologist (EP). Miss X said the delay caused Y distress affecting their education and mental health and caused the whole family distress. Miss X also said Y could not attend a mainstream school and they were not attending school. Miss X wanted Y to attend a special school.
32. In late May 2025 the Council responded to Miss X’s stage one complaint and apologised for the delays. It said the service was experiencing unprecedented demand, which it was trying to address. It said it had not received Y’s final EP report. It said Y’s Council caseworker had contacted the EP service on multiple occasions and the EP report was still being written. It said as soon as it received Y’s EP report their EHC Plan would be progressed.
33. Miss X remained unhappy and her complaint was escalated to stage two of the Council’s complaint process.
34. In mid-June 2025 the Council sent Miss X its stage two response. It said the Council’s stage one investigation was undertaken thoroughly which apologised for the unacceptable delays and the reason for these were clearly communicated. It said the Council had taken action to address the backlog of assessments. It gave Miss X the Ombudsman’s contact details. Miss X remained unhappy and contacted us.
35. In mid-July 2025 Y’s EP report was issued.
36. In late October 2025 the Council sent Miss X a letter confirming a Council Panel had met and agreed to issue Y’s latest draft EHC Plan. Miss X responded to the Council and agreed Y’s draft Plan, she sent the Council her school preferences for Y. She said Y was not attending school and she would like Y to attend a special school setting.
37. In mid-December 2025 the Council issued Y’s Final EHC Plan naming School 1 in Section I. Y’s section F provision was school based with support to improve confidence in social situations with a key adult and in small groups. It included a graduated transition plan for Y to attend School 1. The Council also gave Miss X her appeal rights to the SEND Tribunal.

Enquiries

38. In response to my enquiries the Council said:
• Y attended an inclusion hub with sporadic attendance and had some specific tutoring from School 1 teachers. However, it did not provide dates or times when Y attended these sessions; and
• in the investigation period Y was on roll at School 1 and the Council had no involvement with Y’s educational provision to determine if it was suitable and did not monitor any alternative provision for Y.
39. Throughout my investigation Miss X did not respond to my queries about what provision Y was provided between November 2024 and mid-December 2025.

My findings

EHC Plan delays

40. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
41. The Council initially took six weeks in Summer 2024 to decide it would not carry out an EHC needs assessment for Y. It was entitled to make that decision and responded within the statutory timeframe and was not at fault.
42. When School 1 made a second EHC needs assessment request in November 2024 for Y the Council took less than six weeks to decide it would carry out an EHC needs assessment for Y. This was within the statutory timescale and it was not at fault.
43. In line with statutory timescales the Council decided within 16 weeks to issue Y with an EHC Plan, the Council was not at fault.
44. However, the Council had not assigned Y an EP due to unprecedented demand and Y’s case worker chased the service for Y’s report. Y’s EP report was not issued until mid-July 2025.
45. The Ombudsman is aware there is a national shortage of public and private EP’s While I accept there are justifiable reasons why the EHC Plan needs assessment took longer than it should, the Ombudsman can make findings of fault where there is a failure to provide a service within statutory timescales regardless of the reasons for that service failure.
46. The whole process should take no more than 20 weeks from the date the EHC needs assessment was requested and should have been completed by early April 2025.
47. Once the Council received the EP report in mid-July 2025 it should have issued Y’s Final EHC Plan within six to eight weeks. The Council issued Y’s Final EHC Plan in mid-December 2025 an overall delay of approximately eight and a half months. The delay was fault causing injustice which caused Miss X frustration and uncertainty about whether Y would have received support sooner. It also meant Miss X’s appeal rights were delayed. Miss X was given her appeal rights in mid-December 2025.

Service improvements

48. The Ombudsman has already made a recommendation to this Council on a similar case. It has agreed to review the capacity in its EHC Team to identify action it needs to take to ensure EHC needs assessments and EHC Plan writing is in line with statutory timescales. On this basis, no further recommendations were needed in relation to this issue.

Section 19 duty

49. The Council was aware from summer 2024 and in the autumn 2024 term Y’s attendance at School 1 had declined and their mental health had deteriorated. In late October 2024 the Council asked School 1 to exhaust Y’s attendance issues before it would consider Y being a child missing in education. There is evidence Miss X wanted to electively home school Y but there was no evidence an elective home education form was submitted to the Council. Although Y stopped attending School 1 in mid-November 2024, Y remained on roll at School 1 and in late February 2025 the Council decided Y was a child not in school not a child missing in education.
50. The Council considered Y’s poor attendance at School 1 should have been dealt with through the school’s absence policy not through its section 19 duties. However, there is no evidence of how the Council considered its section 19 duty or if it clearly recorded its section 19 decision making. This was fault, however, on balance I cannot say this resulted in Y missing out on alternative education. The evidence shows Miss X did not want Y to attend School 1, although Y’s Final EHC Plan still included School 1 for Y. There is no evidence of how ill Y was with their mental health after November 2024 or what provision Y received. There is uncertainty whether Y would have engaged with any alternative provision had the Council put it in place for Y. The Council was at fault for not considering its section 19 duty and caused Miss X uncertainty.

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Agreed action

51. Within one month of the final decision the Council will:
1. pay Miss X £500 to acknowledge her frustration, uncertainty and delayed appeal rights caused by the Council’s failure to issue Y’s Final EHC Plan in line with statutory timescales; and
2. apologise and pay Miss X £200 for the uncertainty it caused her when it failed to properly consider its section 19 duty between November 2024 and mid-December 2025. 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.
52. Within three months of the final decision the Council will:
1. review how it makes and stores clear and accurate records of section 19 decision making.
53. The Council will provide us with evidence it has complied with the above actions.

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Decision

54. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused and prevent reoccurrence of the fault.

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Investigator's decision on behalf of the Ombudsman