Summary: Mrs X complained about delays in completing an Education, Health and Care needs assessment for Y and a lack of alternative provision while he was out of school. We find the Council at fault for delay and for not putting alternative provision in place for Y, causing frustration and uncertainty and meaning he missed out on education he was entitled to. The Council has agreed to apologise and make a payment to recognise the injustice caused.

The complaint

1. Mrs X complains the Council failed to complete an Education Health and Care (EHC) needs assessment and issue an EHC Plan for her son, Y within statutory time limits. Mrs X also complains the Council failed to provide Y with alternative provision while he was out of school. As a result, Mrs X says Y did not receive the education or social interaction he was entitled to and she incurred costs of providing education for him herself.

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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. 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)
4. 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)
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. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
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 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

9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. If someone has, or could have appealed to the Tribunal, the law says we cannot investigate any matter which was part of, connected to, or could have been part of the appeal. As Mrs X had the right to appeal the content of Y’s EHC Plans, including the named school and special educational provision to the Tribunal, I have not investigated the content of Y’s EHC Plans.
11. We cannot usually investigate complaints about events that took place more than 12 months before they were brought to the Ombudsman. We can only exercise discretion to look back further if there are good reasons to do so.
12. Mrs X first brought her complaint to the Ombudsman in July 2025, meaning events that took place before July 2024 have been raised late. However, as the delay in raising a complaint was due to the Council not completing Y’s EHC Plan annual review when it should have done, I have exercised discretion to look back to October 2022.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. 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

EHC needs assessment

15. A child or young person with special educational needs (SEN) may have an 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. 
16. On receiving a request for an EHC needs assessment, a council must decide whether an assessment is necessary. As part of an EHC needs assessment, a council must seek advice from the parent, head teacher of the school, and from any other professionals, including an Educational Psychologist (EP).
17. 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 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 a Council decides to assess a child’s EHC needs, they must gather information from relevant professionals, who must respond within six weeks;
• If the Council decides not to issue an EHC Plan, it must explain this within 16 weeks from the date of the request.
• If it decides to issue an EHC Plan, the Council must then send a draft plan to the child’s parents, giving them 15 days to comment; and
• 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.
18. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).

Section 19 duty

19. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
20. The "otherwise" category provides for a wide range of scenarios where the Council may have a legal duty under section 19. It would include, for example, when a child was refusing to attend school due to anxiety or phobia. (Statutory guidance ‘Alternative Provision’ January 2013)
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.

What happened

24. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything said and submitted, this is not intended to be a detailed account of what took place.
25. Y was on roll at School A but had been attending on a reduced timetable from October 2022. The Council received a request to assess Y’s EHC needs on 7 December 2022.
26. The Council considered this request and wrote to Mrs X on 8 February 2023 to confirm it would complete an EHC needs assessment for Y.
27. On 2 March the Council met with Mrs X as part of the EHC needs assessment process. At this point, Mrs X informed the Council Y had only been attending school for 45 minutes per day.
28. On 29 March the Council missed the 16-week deadline to let Miss X know whether it had decided to issue an EHC Plan for Y.
29. On 26 April the Council missed the 20-week deadline to complete the assessment and issue an EHC Plan, if that is what it intended to do.
30. On 28 April Mrs X contacted the Council’s education Inclusion team to make it aware Y was only attending school for 45 minutes per day. The Council contacted School A to discuss this and create a support plan for Y.
31. School A explained it had put nurture provision in place for one session a week alongside the 45 minutes in school. It said it had tried to increase this, but Y was unable to engage with additional sessions.
32. Notes show the Council spoke to Mrs X on 25 May and she explained she did not feel there was a plan in place to increase Y’s time in school or provide additional support. She said Y wanted to be in school for longer but was not being given the opportunity to.
33. The Council referred Y to its school attendance support service and by June 2023 he was attending for 90 minutes twice a week and 45 minutes the other three days.
34. Notes show the Council spoke to Mrs X on 14 June and she expressed she was pleased with the increase in time in school with nurture provision. School A had said its plan for the next academic year was for Y to continue on a reduced timetable of 45 minutes per day.
35. In July 2023 School A confirmed that going forward Y would be offered four nurture provision sessions per week, with a review of this arrangement every two weeks and a view to full time by the October 2023 half term.
36. In November 2023 the Council wrote to Mrs X to let her know it had decided to issue an EHC Plan for Y and provided a draft EHC Plan. The Council has said the delay was due to a shortage of EPs to provide advice for the assessment.
37. In December 2023 Mrs X contacted the Council to explain Y’s time in school had been reduced back down to an hour a day. The Council explained Mrs X could refuse the reduced timetable but she did not think it would be in Y’s best interests to do so. Mrs X explained she had been paying for a private tutor since September 2023 and asked if the Council could provide funding for this.
38. On 5 January 2024 the Council issued a final EHC Plan, this did not name a specific school but said the educational placement would be a local mainstream setting.
39. On 9 May the Council issued an amended EHC Plan, naming School B.
40. Mrs X appealed Y’s EHC Plan to the Tribunal. In February 2025 the Tribunal ordered the Council to issue a new EHC Plan. On 4 March the Council issued a new EHC Plan, naming School C. Y has attended there since that time.
41. Responding to a complaint by Mrs X, the Council agreed it had not issued Y’s EHC Plan within statutory timescales. The Council also agreed that after October 2022 it should have implemented support for Y in line with Section 19 and apologised that this did not happen.
42. In response to our enquiries, the Council has explained that during the period I have investigated, its SEND teams were going through considerable change. The Council explained work has been done to ensure situations like this do not recur, including issuing guidance to staff in relation to the Section 19 duty.

Analysis

43. The Council initially received a request to assess Y’s EHC needs on 7 December 2022. The Council informed Mrs X it would complete an EHC needs assessment and set out the next steps but missed the deadline by which to decide whether it would issue and EHC Plan for Y. This is fault and caused uncertainty for Mrs X and Y, which is injustice.
44. If the Council had completed the EHC needs assessment in line with statutory time limits, Y’s EHC Plan would have been finalised by 26 April 2023. However, the Council did not finalise Y’s EHC Plan until 5 January 2024, around eight months after the deadline to do so. This is a considerable delay which caused significant uncertainty and frustration for Mrs X, as well as frustrating her rights to appeal to the tribunal. The delays also created uncertainty around whether Y was missing out on special educational provision he would have been entitled to between April 2023 and January 2024. This is injustice.
45. From October 2022 Y was only attending School A on a reduced timetable. At this point, the Council needed to consider its duty to make arrangements for the provision of suitable education. In its response to Mrs X’s complaint, the Council has agreed it failed to do so, which is fault. This meant Y missed out on provision he would have been entitled to across around seven school terms between October 2022 and when he started attending School C in March 2025.
46. It is not my role to say what alternative provision Y should have received or what level of education was suitable for him. However, I find the Council ought to make a symbolic payment of £900 per term to acknowledge the impact of the loss.

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Action

47. To address the injustice identified above, the Council should carry out the following actions within one month:
• Provide Mrs X with a written apology for the injustice caused by the failure to complete Y’s EHC needs assessment within the statutory time limits and the failure to implement Section 19 support for Y. 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 £800 in recognition of the delays in completing Y’s EHC needs assessment and issuing a final EHC Plan for him.
• Pay Mrs X £6,300 in recognition of the failure to implement Section 19 provision for Y between October 2022 and March 2025.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. 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