Summary: Mrs X complained the Council delayed issuing her child Y’s Education, Health and Care (EHC) plan and failed to arrange suitable alternative education while he was out of school. There was fault in the Council’s actions. The Council agreed recommended actions to remedy the injustice caused and a service improvement recommendation.

The complaint

1. Mrs X complained the Council failed to complete her son Y’s Education, Health and Care (EHC) plan within the statutory timescale and failed to arrange suitable alternative education while he was out of school.
2. Mrs X said these failings meant Y missed a significant period of education. She said the delay also meant she had to appeal the school named in the EHC plan. She said this caused distress, financial impact due to time off work, and prolonged 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. 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. (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. The naming of a school in Section I of the EHC plan is subject to an ongoing appeal to the SEND Tribunal and is outside the scope of this investigation. We have only considered matters up to the point Mrs X had a right of appeal following the issue of the final EHC plan. This includes the Council’s actions in arranging alternative education up to that point. We have not investigated events after appeal rights arose because they are linked to matters which fall within the Tribunal’s jurisdiction. This does not mean we have decided there was no fault or injustice after that point; only that we cannot consider that later period in this investigation.

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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 guidance and legislation

EHC Plans

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. 
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);  

Section 19 duty

13. Section 19 of the Education Act 1996 says that the council 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

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 alternative educational provision.
15. 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.

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What happened

16. Y has special educational needs and experienced emotionally based school avoidance (EBSA). School attendance records show that from September 2024 onwards Y attended very little school. Y’s attendance for the 2024–2025 academic year was approximately 4.2%, with absences largely recorded as illness linked to EBSA.
17. Mrs X requested an EHC needs assessment in October 2024. Information submitted as part of that request stated Y was unable to access education due to anxiety and unmet special educational needs.
18. The Council started the EHC needs assessment in early October 2024. It decided to issue an EHC plan in March 2025. It issued a draft plan on 15 May 2025 and issued the final EHC plan on 27 June 2025.
19. The Council said it became aware in January 2025 that Y was not attending school. It accepted the SEND Officer should have referred the case to the Fair Access team at that point to consider alternative provision under section 19 of the Education Act 1996. It said this did not happen. The Council confirmed no section 19 referral was made and no alternative provision was arranged during this period. It said the EHC plan was finalised in June 2025 so funding could be released to the school to arrange provision.
20. The Council also accepted fault in its complaint handling. It initially declined the complaint as Tribunal-related and did not consider the elements it could investigate.
21. Mrs X later appealed the school named in the EHC plan. That appeal remains ongoing.

Analysis and findings

Delay in issuing the EHC plan

22. The law requires councils to issue a final EHC plan within 20 weeks of starting the assessment, subject to limited exceptions. The Council took around 38 weeks to issue Y’s final EHC plan, which was a delay of approximately 18 weeks.
23. The Council referred to a shortage of Educational Psychologists. However, the evidence shows it had received key advice by early March 2025 and there was a further delay of around 16 weeks before the final plan was issued. There is no evidence a lawful exception applied to this period.
24. This was fault.

Failure to consider and discharge section 19 duty

25. Under section 19 of the Education Act 1996, councils must arrange suitable education for children who are unable to attend school and would not otherwise receive suitable education.
26. The evidence shows Y had very low attendance from September 2024 onwards and was largely unable to access education due to EBSA. The information submitted with the EHC needs assessment request in October 2024 made clear Y was unable to attend school and that his needs were not being met.
27. Although the Council said it became aware in January 2025 that Y was not attending school, the evidence shows it had information from at least October 2024 indicating Y was not accessing education and was struggling to attend. At that point, the Council should have considered whether it had a duty under section 19 to arrange suitable alternative education.
28. The Council did not carry out a section 19 assessment, did not refer the case to the Fair Access team and did not arrange any alternative provision. It has accepted it should have acted once it became aware in January 2025. However, the earlier evidence shows it should reasonably have considered its duties sooner.
29. This was fault.

Complaint handling

30. The Council accepted it wrongly declined the complaint as Tribunal-related and failed to consider the aspects of the complaint it could investigate.
31. This was fault.

Injustice and remedy

32. Y experienced a significant loss of education. Y missed approximately 326 sessions, equivalent to 163 school days (around 2.5 terms), between 7 October 2024 and shortly before the issue of the final EHC plan, when Mrs X gained a right of appeal. Y did not receive any alternative provision arranged by the Council during that period. This loss of education occurred in the context of identified special educational needs and EBSA, which required structured and appropriate support.
33. The Ombudsman’s guidance indicates a payment of between £900 and £2,400 per term to acknowledge the impact on the child, as well as the associated impact on the family where fault has resulted in a loss of education. Given the severity of Y’s needs, the near-total absence from education, and the absence of any alternative provision during this period, a higher payment is appropriate.
34. Mrs X experienced distress and frustration caused by the delay in issuing the EHC plan, along with prolonged uncertainty and a delayed right of appeal. She also experienced increased caring responsibilities because Y was out of school and avoidable time and trouble in pursuing her complaint.
35. The complaint handling fault caused additional frustration and time and trouble.

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Action

36. To remedy the injustice caused, within one month of our final decision, the Council 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 £5000 to Mrs X for Y’s loss of education. This figure reflects approximately 2.5 terms of lost education at a rate of £2000 per term, taking account of the severity of the impact in this case.
• Pay £200 to Mrs X to recognise the distress, uncertainty and time and trouble caused by the Council’s delay in issuing the EHC Plan and complaint handling failures.
37. Within three months of the final decision, the Council agreed to:
• Review its processes to ensure it can promptly identify when a child is not receiving suitable education and trigger consideration of its duties under section 19 of the Education Act 1996. The review should identify the root cause of the failure in this case and the actions it will take to ensure children in similar circumstances are identified and supported without delay. It should review how information about non-attendance is shared between schools, SEND services and Fair Access, and what clear triggers are in place to prompt escalation and decision-making.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. The Council agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman