Summary: Mrs X complained about the Council’s delays during the Education, Health and Care needs assessment process for her son. She also complained about the Council’s failure to provide her son with an education for over two years. We find the Council was at fault for its delays during the Education, Health and Care needs assessment process. This caused Mrs X uncertainty and frustration. The Council has taken suitable action to remedy this injustice and so we do not recommend anything further. There was further fault by the Council as it failed to ensure Mrs X’s son had a suitable education. This has caused Mrs X distress and frustration. Mrs X’s son missed out on an education. The Council has agreed to apologise to Mrs X and make a payment to her to reflect the injustice caused.

The complaint

1. Mrs X complained about the Council’s delays during the Education, Health and care (EHC) needs assessment process for her son, Y. She also complained about the Council’s failure to provide Y with an education for over two years.
2. Mrs X says the matter has had a detrimental impact on Y and the whole family.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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).
8. 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

9. The deadline for the Council to complete Y’s EHC needs assessment was December 2023. Mrs X says Council failed to provide Y with an education from 2023. However, Mrs X did not refer her complaint to us July 2025. As the issues were ongoing, I have restricted my investigation to look at matters from June 2024. I am satisfied Mrs X could have bought her earlier concerns to us sooner. Therefore, I have not exercised discretion to investigate them. However, I will reference matters before June 2024 for contextual purposes.
10. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
11. Mrs X appealed to the Tribunal about the placement in Y’s EHC Plan. Her complaint about the education the Council provided to Y is linked to her disagreement about the placement in Y’s EHC Plan. Therefore, I have not investigated what education the Council provided to Y from 27 November 2024 (when the Council issued Y’s final EHC Plan) to 5 February 2025 (when the Tribunal confirmed the appeal was at an end).

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Timescales and process for EHC needs assessment

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

15. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). Those consulted have a maximum of six weeks to provide the advice. 

Alternative Provision

16. 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.
17. 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.
18. 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.

What happened

19. This chronology provides an overview of key events and does not detail everything that happened.
20. Y has special educational needs. Mrs X applied for an EHC needs assessment for Y in August 2023. The Council agreed to complete the assessment a few days later.
21. The Council’s inclusion team became aware Y was struggling to attend his mainstream school in February 2024. It attended a meeting with the school and Mrs X. The school agreed to put in place reasonable adjustments, such as a reduced timetable, to help Y to attend.
22. The Council continued to attend meetings about Y’s attendance at school and to review the measures the school had put in place.
23. The Council agreed to issue Y with an EHC Plan in early May. It sent Mrs X a copy of Y’s draft EHC Plan in mid-June.
24. The Council attended a further review meeting on 20 June to discuss Y’s attendance. The school said Y had not attended since the last meeting despite plans to support him. The attendees of the meeting discussed whether Y should have some home tuition or alternative provision in the new term.
25. The Council attended a further review meeting in late August. The school agreed to put in place home tuition for Y for one hour per week. It also said it would explore alternative provision for Y.
26. Y started accessing one hour per week of home tuition in September. By October, he was receiving two hours per week.
27. Mrs X attended a meeting with the Council and the school in late October. She asked for a further two hours per week of home tuition for Y. The officer who attended the meeting asked the manager for an increase in Y’s home tuition hours.
28. The Council issued Y’s final EHC Plan in late November. It named Y’s mainstream primary school and a mainstream secondary school for Y to attend from September 2025 onwards.
29. The Council’s inclusion team closed its case as Y had an EHC Plan and the school had put tuition in place.
30. Mrs X appealed to the Tribunal. She said she said she disagreed with the mainstream settings in Y’s EHC Plan. She also said the provision in the EHC Plan did not meet Y’s needs.
31. The Council emailed the Tribunal in January 2025 and said it would not contest Mrs X’s appeal. The Tribunal emailed the Council in early February and said the appeal was now at an end.
32. Mrs X complained to the Council in mid-March. She said Y had been out of education for over two years and it had taken too long to finalise his EHC Plan. She said Y was entitled to an education which he was not receiving.
33. The Council responded to Mrs X’s complaint in April. It said it would offer her £100 per month outside the 20-week statutory timescale to recognise the delay in completing Y’s EHC needs assessment and issuing his EHC Plan. It apologised for the delays. It paid Mrs X £1,221.43.
34. The Council issued Y’s amended EHC Plan in mid-April. It named Y’s current mainstream school until July. It named a specialist secondary school from September onwards.
35. Mrs X referred her complaint to us in early July.

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Analysis

Delays during the EHC needs assessment process

36. The Council was at fault for its significant delay in finalising Y’s EHC Plan outside the statutory 20-week timescale. This fault caused Mrs X frustration and uncertainty. However, the Council has remedied the injustice to Mrs X by making a payment to her and apologising. This payment covers a period I have not investigated. The Council has also agreed in another similar case to create an action plan to ensure it adheres to statutory timescales when completing EHC needs assessments. Therefore, I have not made any service improvement recommendations.

Alternative provision

37. The Council was aware by June 2024 the measures the school had put in place had not worked for Y and he was not receiving an education. It therefore had a section 19 duty to provide Y with alternative provision. However, Y did not receive any alternative provision (home tuition) until September 2024. This delay is fault.
38. Y started receiving one hour week of tuition in September 2024. This is a limited amount of education. The Council has not provided any evidence to show how it decided such little tuition was suitable for Y. This is fault. Y quickly started accessing two hours per week of tuition in October 2024 and he was engaging well. Therefore, I find, on balance, Y would have been able to access more tuition if the Council if had acted without fault.
39. Mrs X asked for four hours per week of tuition for Y at the end of October 2024. This increase did not happen. Y continued receiving two hours per week of tuition until July 2025. This is fault. As I have mentioned above, Y was engaging well as he was accessing tuition outside the school environment. I therefore find it more likely than not he would have been able to access more tuition.
40. The Council closed its file because Y had an EHC Plan and he was receiving tuition. However, it failed to keep an overview of the tuition Y was receiving, whether it was suitable for him, and whether he could access more. This is fault.
41. The Council seemed to rely heavily on the school providing Y with tuition. In response to my enquiries, the school explained there was a delay in it receiving increased funding and this may have impacted the amount of tuition Y received. However, the Council had the overall responsibility to ensure Y was receiving a suitable education, and not the school.
42. The Council’s faults outlined above have caused Y an injustice as he did not receive a suitable education that he was legally entitled to. The Council’s fault also caused Mrs X frustration and upset. I have made appropriate recommendations to remedy this injustice.
43. When I issued my draft decision, I recommended the Council reviews how it makes decision regarding alternative provision. The Council explained in response to my draft decision that it has provided training to staff in November 2025 about alternative provision, and this has been instrumental in establishing a clear process for recording decisions and ensuring transparency. I am satisfied with the improvements the Council has made, and I have therefore removed the service improvement recommendation.

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Action

44. By 11 May 2026 the Council has agreed to:

• Apologise to Mrs X for the injustice caused by fault in this statement.
• Pay Mrs X £1,600 to reflect Y’s missed education from June 2024 to November 2024 and a further £2,175 to reflect Y’s missed education from February 2025 to July 2025. Mrs X may want to use this for Y’s educational benefit.

45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. There was fault by the Council, which caused Mrs X and Y an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman