Summary: Mr D complained the Council failed to adhere to the statutory timescales for the Education, Health and Care needs assessment process for his daughter (X) and about the education X received since 2021. The Council accepted it caused delays in the statutory process, it communicated poorly with Mr D, and to some fault how it considered X’s alternative provision. Overall, we agreed with the Council’s findings, but its remedy was not enough to acknowledge the impact this caused X and Mr D. The Council will make a further payment to acknowledge the injustice its faults caused. Some parts of Mr D’s complaint were late and therefore not considered.

The complaint

1. Mr D complained about the Council’s handling of his daughter’s (X) education over a three-year period. He said:
• X did not receive a suitable education which also met her social and emotional needs. This was from Autumn 2021 when she was unable to attend her school placement until October 2024 when her EHC plan was issued;
• X did not receive an education and special educational needs provision as set out in her EHC plan from October 2024 until July 2025;
• the Council failed to adhere to the statutory timescales for the Education, Health, and Care (EHC) needs assessment process for X, and it listed a school placement which was not suitable; and
• the Council communicated poorly with him throughout the process.
2. Mr D said, as a result, X had a loss of education and special educational needs provision, and he experiences distress and uncertainty.

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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. 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.
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. 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)
8. 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.
9. 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

10. Mr D’s complaint relates to the Council’s handling of X’s education and EHC needs assessment process from 2021 to Summer 2025. He brought his concerns to our attention in Autumn 2025. We expect complainants to bring concerns to our attention within 12 months of the events complained about, a significant part of his complaint it therefore late.
11. I have considered my discretion and found it appropriate to investigate:
• Mr D’s complaint about the Council’s delayed handling of the EHC needs assessment process for X from May 2023, including how it communicated with him. This was when it reconsidered the request and agreed to assess her for a plan. It was appropriate to exercise my discretion as the plan was not issued until Autumn 2024, which was 12 months before Mr D brought his complaint to the Ombudsman;
• The Council’s handling of X educational provision since September 2023. This was when the EHC plan process should have been finalised; and
• The Council’s handling of X’s education and special educational needs provision as set out in her EHC plan from October 2024 to July 2025.
12. I have not investigated any concerns Mr D had about X’s education prior to September 2023. This is because such concerns should have been brought to our attention sooner.

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How I considered this complaint

13. I considered evidence provided by Mr D and the Council as well as relevant law, policy and guidance.
14. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
15. 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

Relevant law

Education, Health and Care needs assessments

16. 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);
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

Education, Health and Care plans

17. 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.
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). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
19. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Alternative Provision

20. 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.
21. 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.
22. 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.
23. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
24. 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)
25. 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.

26. 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.

What happened

27. Mr D’s daughter, X, stopped attending her school placement (School Y) in 2021 due to mental health challenges. Her school arranged online education with tuition providers. Referrals were made for wellbeing support and assessments,
28. In 2022 the Child and Adolescent Mental Health Services (CAMHS) confirmed X was unfit to attend her school placement. Other health assessments were ongoing at the time and the Council’s children services were involved.
29. By January 2023 X was receiving online tuition. Mr D applied to the Council for an EHC needs assessment for X.
30. The Council initially refused to complete an assessment for X. However, in May 2023 it agreed to complete the assessment as School Y had provided additional information. In June 2023 it confirmed it would issue an EHC plan for X.
31. By September 2023 School Y had reviewed X’s learning and made a referral for Blended Learning, which would be delivered online by an alternative provision college. This included 25 hour per week of education consisting of online tutoring, assignments, support from a staff member to include 1:1 sessions. A focus on math and English was found appropriate, and the provision started in September 2023.
32. The alternative provision remained in place from September 2023 to December 2024. X had good attendance. Two review meetings took place during this time which included Mr D, School Y, and the alternative provision provider. Mr D shared his preference for X’s educational placement.
33. The Council issued a draft EHC plan for X in Spring 2024. It consulted with Mr D’s parental preference placement, which said it could not meet the needs set out in her draft EHC plan. School Y also said it could not meet her needs.
34. In Autumn 2024 the Council’s educational psychologist assessed X. The Council issued X’s final EHC plan in October 2024. However, it listed School Y as no other school had been found for X. The Council told the school it would provide it with the funding from the EHC plan to deliver the provision she needed.
35. Mr D said the Blended Learning support in place with the alternative provision college stopped in October 2024. School Y arranged tuition for X, but it took some time for this to be in place. This did not include any of the support X should receive for her social, emotional, and mental health (SEMH) provision as set out in her EHC Plan. He asked School Y to arrange such provision with another education provider.
36. School Y raised concerns to the Council about being listed in X’s EHC plan. The council shared it was consulting with other schools to find a suitable placement for X.
37. School Y asked the Council to consider the SEMH provision in late 2024. In February a SEMH provider visited X and found it could support X. It set out its costings which was shared with the Council.
38. School Y subsequently chased the Council for updates on funding and the SEMH provision. It also shared Mr D’s ongoing concerns with the Council.
39. The Council first considered the request in May 2025. This included X’s educational arrangements from September 2025. It agreed X should receive an Education Other Than At School (EOTAS) package. The summer term should be used to arrange a package which would start in the next academic year, but any provision available before then should be provided to X. The Council approved an EOTAS package for X in July 2025 which included SEMH provision.

Mr D’s complaint

40. Mr D complained to the Council in Summer 2025 about its handling of X’s education and the EHC plan process. Below are the key points of his complaint and the Council’s response:
• the Council failed to adhere to the statutory timescales for the EHC needs assessment process for X, and it listed a school placement which was not suitable;

The Council acknowledged it had caused delays in the statutory process, and apologised. This included sharing its draft EHC plan and to issue its final plan for X. It explained the delays were largely due to demand on its services and shortages of educational psychologists, which it has taken steps to improve.

It also acknowledged Mr D disagreed with School Y being the named setting in X’s EHC plan, but he had rights to appeal this to the SEND Tribunal. It said it had continued to look for a long-term placement at the time.

• X did not receive a suitable education which also met her social and emotional needs. This was from Autumn 2021 when she was unable to attend School Y until October 2024 when her EHC plan was issued;

The Council explained it was X’s school which was responsible for her education, and school Y had been resourced during the process to provide her with her education. This included additional resources during the EHC plan process.

However, it acknowledged X did not receive an appropriate level of support during the delayed EHC plan process for her social and life skills. It had since put this in place in a temporary personal budget and as part of her EOTAS package. It apologised and set out steps which it had taken to improve it service.

• X did not receive an education and special educational needs provision as set out in her EHC plan from October 2024 until July 2025;

The Council did not agree it had failed to provide provision of X’s EHC plan from October 2024. This was because School Y was responsible for delivering the provision, and no issues or concerns had been raised with the Council.

It accepted it had caused delay from March 2025 when it received a SEMH referral from the school, which it did not act on in a timely manner. It explained it had allocated a temporary budget of £200 per week for the final six weeks of the academic year as an interim and catch-up measure to enable such provision for X, which had been paid to Mr D through a personal budget.

• the Council communicated poorly with him throughout the process.

The Council accepted it had communicated poorly with Mr D during the EHC plan process and until its EOTAS provision was arranged in Summer 2025. It apologised, and explained it had taken steps to address this through reviewing its service, recruiting staff, and putting new procedures in place.

41. Mr D asked the Ombudsman to consider his complaint as he was not satisfied with the outcome of complaint to the Council.
42. In response to the Ombudsman’s enquiries the Council reviewed the case. It accepted fault for delays to ensure X’s EHC plan provision was appropriately implemented for two terms. This was because X had been found medically unfit to attend school for some time and it should have considered her under its Section 19 duties while waiting for suitable provision and placement decisions. It also set out steps it had taken to improve its service following the complaint and other Ombudsman decisions.

Analysis and findings

The EHC needs assessment process and X’s education up to October 2024

43. The Council has accepted it caused a service failure in the statutory process, which resulted in significant delays in assessing X’s needs and issuing her final EHC plan.
44. I found X’s EHC plan should have been finalised in August 2023. It was not until October 2024 the Council issued her final EHC plan. This was therefore a delay of 14 months. The primary cause of the delay was due to the Council’s challenges to arranging an educational psychologist to assess X.
45. During this time, X was on roll with School Y, which received additional funding from the Council to provide her with an education. She received alternative provision in the form of tuition and Blended learning support as she was unable to attend school. I found X had alternative provision available to her which she accessed.
46. I acknowledge Mr D believes X should have been provided with more, different, or other additional educational provision, including special educational needs support which would have been in place but for the delays in Council’s EHC plan process.
47. While the Council has apologised, I am not satisfied this is enough to remedy the injustice this caused Mr D and X. This is because the delays caused Mr D distress and uncertainty, and X had a loss of opportunity to receive some special educational needs provision or support.
48. In line with our Guidance on Remedies, we remedy delays caused by service failures in the EHC plan process with £100 per month. This is a symbolic payment to acknowledge the impact the delays had as I cannot say what support would have or should have been in place until the final EHC plan was issued.

X’s education from October 2024

49. I have largely agreed with the Council’s findings. This was:
• School Y was listed in X’s EHC plan. The Council provided it with funding to deliver X’s education in line with her needs and support set out. Any concerns Mr D had about the school placement or content of X’s plan was not for the Council to consider. This was because Mr D had appeal rights to the SEND Tribunal;
• the Council failed to properly consider and put in place alternative provision for around two terms while X was awaiting suitable provision and placement. This is because she had been found unfit to attend her school placement. The Council remained responsible for ensuring she received her education and provision in her EHC plan, and it should review such provision is in place soon after her plan had been issued. In this case, it should have provided additional provision which included social and life skills; and
• from March 2025 the Council caused delays in progressing School Y’s referral for SEMH tuition. This was not properly considered and actioned until Summer 2025 when the Council put in place a personal budget for X. On this point, I found evidence School Y had brought this concern to the Council’s attention in late 2024. I therefore found the delay to action this started from early 2025.
50. I have therefore found fault by the Council in how it handled X’s education after it issued her EHC plan in October 2025. The Council has apologised for its handling and put in place a personal budget for X in the final six weeks of the academic year.
51. I found the Council’s remedy was appropriate to address the impact it faults had on X for parts of the summer term 2025 and to ensure she had the opportunity to receive provision for the final six weeks. However, this did not fully consider the impact faults caused from January 2025 when it was, or should have been, aware of the concerns. In line with our Guidance on Remedies, I have therefore recommended a symbolic payment for the loss of provision, or loss of opportunity, X experienced for this period.

Communication with Mr D

52. The Council accepted it had communicated poorly with Mr D throughout the EHC needs assessment process for X, and since it issued her EHC plan in October 2024. This was fault.
53. While the Council has apologised, I found this was not enough to remedy the unnecessary distress and uncertainty its poor communication caused him. I have therefore recommended a symbolic payment.

Service improvement recommendations

54. I have not made service improvement recommendations on this case. This is because the Ombudsman has considered other complaints during the same period of Mr D’s complaint. The Council has acted on our recommendations and put measures in place to improve its services and mitigate delays.

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Action

55. To remedy the injustice the Council caused to Mr D and X, the Council should, within one month of the final decision:
1. pay Mr D £1,400 to acknowledge the impact its delayed handling of X’s Education, Health and Care needs assessment process caused them. This is calculated at £100 for each month of the delay;
2. Pay Mr D £1,200 to acknowledge the loss, or loss of opportunity, X experienced to receive educational provision in line with her EHC plan until the Council’s personal budget was available to X. This remedy recognises the personal budget the Council has already provided Mr D; and
3. Pay Mr D a further £200 to acknowledge the unnecessary distress and uncertainty he experienced as a result of the Council’s poor communication from May 2023 until Summer 2025.

In total the Council should pay Mr D £2,800.

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

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Decision

57. I have completed my investigation with a finding the Council was responsible for a service failure and some fault. While it has apologised and provided a remedy, this was not enough to remedy the injustice Mr D and X experienced. The Council agreed to make payment to Mr D to acknowledge the impact its faults caused.

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Investigator's decision on behalf of the Ombudsman