Summary: There was fault by the Council. It took over a year too long to issue a final EHC Plan for Miss X’s son and failed to ensure that his alternative educational provision was sufficient when he was out of school. The Council also took too long to respond to Miss X’s complaint about this. This caused Miss X uncertainty and frustration, and meant that her son did not receive the special educational provision he needed when he was able to return to school. The Council has agreed to apologise to Miss X, make her a symbolic payment to recognise the impact on her and her son, and remind staff that the Council remains responsible for alternative educational provision even when this is arranged by a school.

The complaint

1. Miss X complains that the Council:
• Took too long to issue an Education Health and Care (EHC) Plan following her request for an assessment;
• Failed to make suitable alternative educational provision for her child in the meantime; and
• Did not handle her complaint to it properly.
2. Miss X says that the Council’s failings have caused her son to miss education, and has caused her distress and uncertainty.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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

5. I have investigated the Council’s actions from May 2024 when Miss X requested an EHC needs assessment, to November 2025, when the Council issued the final EHC Plan.

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How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
8. 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 found

The law and guidance

The EHC Plan process

9. 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. 
10. 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);  

11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).  

Alternative provision

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. 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.
14. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
15. 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)
16. 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.

17. 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.
18. 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. 

The Council’s alternative educational provision policy

19. The Council’s policy says it is for the Council to arrange alternative provision and not the school. It says the Council must consider the individual circumstances of the child and be able to demonstrate its decision making. It says the education must be suitable and full time (21 hours per week but usually fewer hours where the provision is 1:1)

What happened

20. Miss X’s son, K, has special educational needs. Miss X asked the Council for an EHC Needs Assessment on 24 May 2024.
21. This means the Council should have notified Miss X of whether it would do the assessment by 5 July, and if proceeding issue a draft EHC Plan by 11 September and a final Plan by 11 October 2024.
22. In the meantime, K was enrolled at a school but could not attend. The school commissioned alternative educational provision of just over five hours per week.
23. In July 2024, the Council notified Miss X that it would assess K for an EHC Plan. However, it missed the deadlines for progressing the Plan, and in January 2025, Miss X complained to it. She also complained that the alternative provision was not enough for K, and that the Council had failed to keep in touch with her about what was happening.
24. The Council did not respond until June 2025. It said that an Educational Psychologist needed to assess her child before the Council could draft the EHC Plan, but there was a shortage of available Educational Psychologists. It apologised for the delay and offered to pay Miss X £150 (a symbolic payment in recognition of the impact of the delays). It told Miss X to complain to the school if her child’s alternative provision was not sufficient.
25. In July 2025, K started at a new school and the Council received the Educational Psychologist’s assessment. This said that K needed weekly 1:1 or small group support with his social difficulties; weekly mentoring; a different approach to tackling school work; weekly 1:1 or small group support to develop his emotional regulation; and adaptations to meet his physical needs.
26. The Council issued a draft EHC Plan in November 2025 and the final Plan on 26 November 2025, naming the school K had started in July.
27. The Council has an action plan to improve its special educational need and disability service. In 2024, it had a plan to recruit more Educational Psychologists, and it worked with private psychologists to support it. But in June 2025 it reported that the service was still not fully staffed. In November 2025, the SEND service reported to the Council’s cabinet meeting that demand for EHC Plans had risen and the Council now had a significant backlog in progressing EHC Plans. The Council agreed to invest more resources in the service to allow it to increase staffing to tackle the EHC Plan backlog.

Was there fault by the Council causing an injustice to Miss X and her son?

28. The Council should have issued K’s final EHC Plan by 11 October 2024. Instead, it took just over a year too long, and issued the final Plan on 26 November 2025.
29. Some of this delay was because the Council needed an assessment by an Educational Psychologist. There is a national shortage of these and the Council had several vacancies, as well as increased demand for EHC Plans. The Council is working to reduce its backlog, but it still has to adhere to the legal timeframes. The Council’s failure to arrange an Educational Psychologist’s assessment in good time is service failure. The Council received the Psychologist’s advice in July 2025, but again due to staff shortages and increased demand, it took until the November to make further progress on the EHC Plan. This was further fault by the Council.
30. The delay in arranging the Educational Psychologist’s report caused Miss X frustration and uncertainty. From July when the Council received the report and K had started a new school, Miss X knew the type of support that K should be getting there. The uncertainty continued, but in addition, we can say that from September to November 2025, K missed out on the special educational provision he should have been entitled to had the Council issued the final EHC Plan in time.
31. The school arranged alternative educational provision for K while he was unable to attend. The Council remains responsible for this despite that the school was managing the day-to-day provision. The law and its own policy says the Council should have arranged full time education unless it was appropriate to temporarily reduce this to meet the child’s needs.
32. Miss X told the Council that K’s timetable was not enough for him. The Council failed to consider whether K’s alternative educational provision was sufficient. It was also wrong to tell Miss X that she should take this up with the school rather than the Council. The Council should have reviewed whether the provision was meeting K’s needs and his entitlement to an education in line with the law, the DfE guidance, and the Council’s own policy.
33. 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.
34. K had alternative educational provision from June 2024 to July 2025, essentially a whole school year. We cannot say whether had the Council considered its duties fully, it would have decided to increase the provision. However, its failure to consider the matter left Miss X frustrated and uncertain that K was receiving the education he was entitled to.
35. The Council’s complaints policy says that it will respond to complaints within 20 working days. However, the Council took nearly 20 weeks to respond to Miss X’s complaint. This put Miss X to further time and trouble trying to resolve matters with the Council.
36. The Council is implementing an improvement plan to tackle delays in issuing EHC Plans.

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Action

37. The Council will within one month of the date of this decision:
• Apologise to Miss X. 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 to Miss X £1,000 in recognition of the uncertainty and frustration it caused her when it took too long to arrange an Educational Psychologist’s assessment.
• Pay to Miss X £450 in recognition of the continued uncertainty and frustration, and missed special educational provision from September 2025 to November 2025.
• Pay to Miss X £300 in recognition of the uncertainty and distress the Council caused when it failed to consider whether K was receiving sufficient alternative educational provision between June 2024 and July 2025.
• Pay to Miss X £150 in recognition of the additional time and trouble it put her to when it took too long to respond to her complaint to it.
• Remind relevant staff by way of a briefing note or team meeting, that alternative educational provision remains the Council’s responsibility, even when this is arranged by a school.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. 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