Summary: Mrs X complained the Council delayed her son’s EHC Plan, failed to provide education while he was out of school, and communicated poorly. There is fault in the Council’s actions. This caused significant injustice to Y due to the loss of education and to Mrs X in the form of distress, frustration, and time and trouble. The Council agreed recommended actions to remedy the injustice caused.

The complaint

1. Mrs X complained the Council delayed issuing her son Y’s Education, Health and Care (EHC) Plan, failed to provide suitable education while he was out of school, and did not communicate properly or take account of her views.
2. Mrs X said as a result Y was out of education for several months, which worsened his anxiety and affected his wellbeing. She also said she experienced distress, frustration and time and trouble in pursuing the matter.

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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. 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)
5. 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.
6. 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)
7. 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

8. I have investigated matters up to June 2024. The final EHC Plan was issued on 20 June 2025, which gave Mrs X a right of appeal to the Tribunal about the named school. Matters relating to the naming of the school therefore fall outside our jurisdiction.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs 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 legislation and guidance

EHC Plan 

11. 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. 

Timescales and process for EHC assessment 

12. 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. 
• 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);  

13. The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days.

Section 19 duty

14. 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.

Establishing a section 19 duty

15. 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 alternative educational provision.

What happened

16. Mrs X requested an EHC needs assessment from the previous council in May 2024. The previous council completed the assessment and decided in December 2024 that Y should have an EHC Plan.
17. Mrs X and Y moved into Medway Council’s area in December 2024. Medway Council was notified of the move on 30 January 2025 and received Y’s file from the previous council by 10 February 2025.
18. Y continued to attend school for some days after the move, but Mrs X found commuting to be financially unsustainable. Mrs X contacted the Council in February 2025 to say Y was not in school and that she had been unable to contact the allocated officer. She continued to raise concerns in subsequent correspondence about Y being out of education.
19. The Council issued a draft EHC Plan on 28 March 2025 and began consulting schools about a placement. Mrs X expressed a preference for a specialist setting and provided medical information about Y’s needs and difficulties in mainstream education.
20. The Council continued its consultation process and issued a final EHC Plan on 20 June 2025. The Plan named a mainstream school and included Y’s right of appeal to the Tribunal.

Analysis and findings

Delay in issuing the EHC Plan

21. The law says councils should issue a final EHC Plan within 20 weeks of a request for assessment. Where responsibility transfers between councils, the receiving authority should use the information already gathered to progress the Plan without unnecessary delay.
22. The previous council already completed the assessment and decided in December 2024 that an EHC Plan should be issued. This indicates the assessment process was complete before the transfer.
23. The Council received Y’s file by 10 February 2025 but did not issue the final EHC Plan until 20 June 2025, around 19 weeks later. While I do not hold the Council responsible for any delay by the previous council, it had a duty to progress the EHC Plan promptly using the information available.
24. The Council has not provided sufficient evidence to justify the length of time taken. I therefore find the Council delayed in issuing the EHC Plan. This delayed Mrs X’s right of appeal.

Failure to secure suitable education

25. Councils have a duty under section 19 of the Education Act 1996 to arrange suitable full-time education for children of compulsory school age who are not receiving suitable education, whether because of illness, exclusion or otherwise.
26. The evidence shows Mrs X informed the Council in late February 2025 that Y was not attending school. Despite this, there is no evidence the Council took steps to establish why Y was not attending, whether he was receiving suitable education, or if it had a duty to arrange alternative provision.
27. The Council said Y remained on roll at his previous school and that the school retained responsibility for his education. However, being on roll does not mean a child is receiving suitable education. The Council should have considered Y’s actual circumstances once it was aware he was not attending.
28. The evidence, including medical information, indicates Y was not accessing suitable education and that this was affecting his wellbeing.
29. The Council failed to properly consider or discharge its duty to secure education. This resulted in Y missing a significant period of education.
30. There is no evidence the Council considered alternative provision while Y was out of school.
31. Mrs X raised concerns about Y being unable to attend school and difficulties with transport. However, the Council did not explore interim solutions such as arranging tuition or other support. Instead, the Council focused on progressing the EHC Plan and consultation process.
32. The Council failed to consider alternative provision once it was aware Y was not receiving education. This was fault.

Communication and case handling

33. Mrs X experienced difficulty contacting the Council and reported unanswered calls and emails. The evidence supports this, including her contact in February 2025 stating she had been unable to reach the allocated officer.
34. The Council later acknowledged delays and disruption caused by changes in caseworkers and apologised.
35. The Council’s communication and case handling were poor. This caused Mrs X avoidable distress, frustration and time and trouble.

Transport

36. Mrs X raised concerns about transport to Y’s previous school. Following the move, responsibility for education and transport transferred to the Council.
37. There is insufficient evidence to conclude the Council was at fault in refusing transport as a standalone issue. However, the lack of transport contributed to Y not attending school and should have prompted the Council to consider its wider duty to secure education.

Injustice

To Y

38. Y missed a significant period of education because of the Council’s failure to secure suitable education. The evidence shows he was out of school from at least mid-February 2025 until the issue of the final EHC Plan in June 2025. This covers the end of the spring term and most of the summer term, a period of about 15 weeks out of education.
39. Y has special educational needs and there is evidence, including medical information, that he was struggling to access education and that his anxiety worsened during this period.

To Mrs X

40. Mrs X experienced avoidable distress, frustration and uncertainty caused by the delay in issuing the EHC Plan, the lack of education for her son, and poor communication from the Council.
41. She also had to spend time and trouble repeatedly contacting the Council to seek updates and raise concerns.

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Action

42. To remedy the injustice caused, within one month of our final decision, the Council has agreed to:
• Apologise to Mrs X for the faults identified. 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 Mrs X £2100 to recognise the loss of education to Y (based on £1800 per full term).
• Pay Mrs X £200 to recognise the distress, frustration, uncertainty, and time and trouble caused.
43. Within 3 months of our final decision, the Council agreed to:
• Produce an action plan to ensure compliance with its duties under section 19 of the Education Act 1996. The plan should set out how officers will consider whether a child is receiving suitable education regardless of school roll and take timely action to arrange interim or alternative provision where required, with clear timescales, responsible officers and monitoring arrangements.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. 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