Summary: Mrs X complained about the Council’s actions linked to her son’s education, the late issue of his Education, Health and Care Plan and its complaint handling and communication. We found fault because the Council issued the plan outside of statutory timescales and did not communicate about Mrs X’s complaint in a timely manner. This caused Mrs X avoidable distress and frustration. It meant Y’s plan was in force later than it should have been which delayed relevant appeal rights. To remedy this injustice, the Council has agreed to apologise and make a symbolic payment to Mrs X.

The complaint

1. Mrs X complains the Council did not provide her son, Y, with appropriate alternative education when he was struggling to attend school and that it took too long to issue his first Education, Health and Care (EHC) Plan. She also complains about the Council’s complaint handling and communication.
2. Mrs X says this has caused her significant and avoidable distress, frustration and uncertainty. She says that Y has also missed out on education he should have received.

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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. My investigation begins in June 2024 which is 12 months before Mrs X brought her complaint to us.
7. My investigation ends when the Council issued Y’s EHC Plan and its final complaint response in April 2025.

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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 the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Timescales and process for EHC assessment 

10. An EHC Plan is a document which sets out a child’s special educational needs and what arrangements should be made to meet them.
11. Statutory guidance ‘Special educational needs (SEN) and disability code of practice: 0 to 25 years’ 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.
12. If a 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).  

Section 19 alternative education duty

13. 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. We refer to this as S19 or alternative education provision (AP).

Establishing a section 19 duty

14. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make AP.
15. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
16. 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.

What happened

17. I have set out below a summary of the key events. This is not meant to show everything that happened. Mrs X’s son, Y, was on roll at primary school (School A) during my investigation period.

EHC needs assessment and plan

18. At the beginning of June 2024, Mrs X requested an EHC needs assessment (the assessment) on Y. This was to determine if Y had SEN which would result in an EHC Plan.
19. After originally declining to carry out the assessment, the Council agreed on 11 November 2024 that it would assess Y. As part of the assessment process, it received a report from an educational psychologist (EP) towards the end of December 2024.
20. The Council made the decision not to proceed past this initial assessment stage which meant it would not be issuing an EHC Plan for Y. It explained this to Mrs X on 9 January 2025.
21. The Council received further EP advice at the end of January 2025. After considering this information, it decided it would go ahead and issue an EHC Plan for Y. It made this decision on 6 February and issued the draft EHC Plan on 24 February 2025.
22. Over the following weeks, the Council says Mrs X sent additional information and reports to it linked to items she wanted to be included in the EHC Plan. The Council says it received the last report from Mrs X on 15 April 2025 and issued Y’s first final EHC Plan on 23 April 2025.

Section 19 request

23. Mrs X contacted the Council late in October 2024 to say Y was struggling to attend school. She sent detailed correspondence to outline what she felt his difficulties were and requested urgent intervention.
24. Mrs X again emailed the Council on 13 November 2024, explaining her detailed concerns and asking the Council to consider its S19 duties.
25. The Council, School A and Mrs X met on 9 December 2024. It was agreed that School A would send work home for Y.
26. In its stage one complaint response sent 15 January 2025, the Council said that where possible a child’s needs should be managed by the usual school (School A). In some circumstances, schools would be expected to refer pupils to the Council’s own school for children who were not able to attend their usual school due to medical, physical or mental health needs (School B). The Council said it would continue to work with School A to review arrangements for Y.
27. The Council met again to review progress on 27 January 2025. The outcome was for School A to continue to send work home and continue to offer support so Y could return to school. The Council decided Y had not met the threshold for a medical referral to School B.
28. A further review meeting was held on 24 February 2025. This confirmed School A was continuing to provide daily work for Y. If he was not in school, a weekly telephone call would be held to explain activities to him.
29. At the beginning of April 2025, the Council again met with Mrs X and School A to discuss Y's case. Records show Mrs X reported Y’s improved engagement with home learning. School A advised it was continuing to provide a range of work which aligned with classroom learning to ensure that Y did not fall behind his peers and said his academic levels had been maintained. School A said it had contacted the emotionally based school avoidance panel for Y’s case to be discussed in May 2025. Meeting records show that School A and Y’s parents agreed a flexible programme was the most appropriate approach. This would allow Y to continue to attend school daily so he could pick up work to do at home.

Complaints

30. Mrs X contacted the Council on 29 October 2024. She complained about matters related to her request for the Council to assess Y for an EHC Plan. She also asked for help with Y’s education as his attendance at School A was falling and she believed his needs were not being met.
31. The Council responded to this on 5 November 2024 and said that matters were now subject of an appeal to the SEN and Disability Tribunal (the Tribunal), so it was unable to comment further. The Council did not respond to Mrs X’s request for help with Y’s education at School A.
32. Mrs X responded to say that her complaint had not been adequately addressed and outlined Y’s difficulties in attending School A. She wanted this to be treated separately to the Tribunal appeal process.
33. On 25 November 2024, the Council emailed Mrs X to apologise that her original complaint had been ‘returned in error’. It said it would now log this at stage one of its process.
34. The Council sent its stage one response on 15 January 2025. It discussed what action it had taken in relation to Y’s education so far. Mrs X escalated her complaint to stage two the same day.
35. The Council sent its final stage two response on 23 April 2025, the same day as it issued Y’s EHC Plan. In this, it:
• listed some of the actions taken so far relating to Y’s education and the involvement of various teams at the Council, School A and the family;
• said it realised Mrs X still had concerns and that these were receiving its attention; and
• said School A could make a referral to School B to see if Y met the threshold for its involvement.
36. The Council signposted Mrs X to the Ombudsman.

Analysis

EHC Plan assessment timeline

37. Statutory guidance states the process for the assessment and any eventual EHC Plan being issued should take no more than 20 weeks from start to finish. In the circumstances of this complaint, this period cannot be counted as one continuous period of time and has to be broken down into component parts.
38. The Council initially declined the assessment for an EHC Plan for Y. It made this decision within the statutory timeframe set out.
39. The Council later agreed to carry out the assessment on Y on 11 November 2024. After completing the assessment, it declined to issue an EHC Plan for Y on 7 January 2025. It made this decision within the statutory timeframe.
40. The Council made the decision to issue an EHC Plan on 6 February 2025. This meant the final plan should have been issued by 6 March 2025. Instead, the Council did not issue the final plan until 23 April 2025, meaning it was outside of the statutory timeframe to do so.
41. In response to my enquiries, the Council explained Mrs X had provided several additional reports for aspects she wanted to be added to Y’s plan after the Council had issued its initial draft. The last of these reports was received on 15 April and the Council issued Y’s EHC Plan eight days later. The Council accepted the final plan had been issued late, but said it wanted to ensure a robust plan was issued for Y.
42. I note the Council’s comments. In response to my draft decision, however, Mrs X disagreed with the Council’s stance. She said she had not requested any amendments to Y’s draft plan after she had submitted her own comments on 10 March 2025 and the document submitted on 15 April was confirmation of a diagnosis rather than a full report.
43. Regardless of the difference of opinion on this, issuing Y’s plan late was fault. It meant delayed appeal rights to the Tribunal and a small delay in Y’s EHC Plan being in force. I am satisfied the delay caused avoidable distress and frustration for Mrs X. I have made a recommendation below to remedy this.

The Council’s consideration of its S19 duties

44. The Ombudsman is not an appeal body. Our role is to consider whether there was any fault in how the Council reached its decision when considering any relevant legislation and guidance. If there was no fault in how the Council made its decision, we cannot question the outcome. A difference of opinion is not evidence of fault.
45. In my enquiries, I asked the Council what action it took when it knew Y was struggling to attend school and what consideration it had given to its S19 duties.
46. In response, the Council said it had initially arranged for an inclusion advisor to visit the school. It said that after that the inclusion team had withdrawn their involvement because the Council’s pupil referral and attendance service had become involved. It said it had decided there was no S19 duty because of this involvement.
47. The Council also referred me to a timeline of meetings where Y’s education was considered and confirmed the case had been overseen by its S19 panel. These review meetings were held in December 2024, and January, February and April 2025.
48. The Council said School A had adapted Y’s timetable and provided work for home whilst maintaining contact and planning for Y’s hoped return to school.
49. Having reviewed the evidence on file, I am satisfied the Council has sufficiently demonstrated it considered whether it owed Y any S19 duty and reviewed this throughout the period of my investigation. The Council was entitled to make the decision that the plans in place for Y and his access to education provided by School A, accompanied by the plan to gradually re-introduce him to the school setting, were sufficient. The Council was entitled to decide it did not owe Y an S19 duty on that basis. I am satisfied the Council considered relevant information and followed the correct processes in doing so. I am therefore satisfied the Council did not act with any fault.

Complaint handling

50. I acknowledge Mrs X’s multiple, often overlapping and repeated complaints made to the Council during the period of my investigation. My investigation looks at Mrs X’s first complaint made, the process it followed and the Council’s final response. Other complaints received a joint final response sent after my investigation ends.
51. When Mrs X registered her first complaint with the Council on 29 October 2024, the Council said that it could not address this as issues raised were linked to the Tribunal appeal. The Council was correct in its stance here in that any matters distinctly related to its handling of the assessment on Y were able to be taken to the Tribunal.
52. However, the Council failed to address Mrs X’s concerns about his difficulties attending School A. Its later response to her apologised it had returned the complaint in error. I agree with the Council’s stance in apologising. I am satisfied concerns related to his attendance difficulties were not matters which the Tribunal would address. The Council should have registered a complaint about attendance and education concerns based on Mrs X’s October contact. Not doing so was fault. This caused distress and frustration to Mrs X. I have made a recommendation below to remedy this injustice.
53. On 25 November 2024, the Council then went on to register a stage one complaint for Mrs X’s concerns about Y’s attendance difficulties. It should have replied within 20 working days, which was 23 December 2024. Instead, the Council sent its stage one response on 15 January 2025. This was a response time of 34 working days.
54. In response to my enquiries, the Council acknowledged its response was late. It said this was due to capacity issues in the team investigating the complaint. The Council said it had advised Mrs X of the delays in December 2024 and early January 2025, before issuing the response on 15 January 2025.
55. Mrs X escalated her complaint to stage two on the day she received her stage one response. The Council should then have sent its response within 20 working days and by 12 February 2025. Instead, the Council sent the response on 23 April 2025 which was 69 working days after escalation.
56. The Council advised me its stage two response was again delayed due to capacity in the teams responding to Mrs X’s complaint. It said it had updated Mrs X and apologised for the delays in an email sent 13 March 2025. This, however, was already a month after it should have sent a final response.
57. The Council acknowledged it did not maintain a good level of communication with Mrs X in relation to her stage one and two complaint responses. It said it aimed to update complainants every four weeks, had failed to do so and that it could have contacted her sooner and more often about delays. It apologised for the uncertainty and upset this caused.
58. I agree with the Council’s assessment of the situation. This poor communication was fault. It caused Mrs X distress, frustration and uncertainty. I have made a recommendation below to remedy this injustice.
59. The Council has recently agreed to service improvement recommendations in similar but unrelated cases, linked to its complaint handling. I will therefore make no further recommendations here.

Communication

60. Regarding general communication, the Council said it did not accept that Mrs X had experienced poor communication between her and its education team. It said the Council had communicated regularly and extensively with Mrs X.
61. I am satisfied that having viewed the evidence on file, overall, the Council adequately responded to Mrs X’s contacts and within reasonable timescales. I do not find any fault on the Council’s part here.

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Agreed action

62. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mrs X for the identified injustice; and
• make a symbolic payment to Mrs X of £150 to acknowledge the distress caused by the identified injustice.
63. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
64. Payments made are in line with the Ombudsman’s guidance on remedies.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman