Summary: Ms X complained the Council failed to provide suitable educational provision for her son Y when he was unable to attend school. She also complained about delays in the Education, Health and Care Plan process, and the Council’s poor complaints handling. We find the Council was at fault for failing to provide suitable educational provision, poor record keeping, and poor complaint handling. It is also at fault for delays in the Education, Health, and Care Plan process. This caused Ms X and Y distress and caused Y a loss of educational provision. The Council has agreed to apologise, pay a symbolic remedy and implement a service improvement.

The complaint

1. Ms X says the Council failed to provide her son, Y, with adequate educational provision while he was unable to attend school. She also complained about the Council’s delay in the Education, Health and Care (EHC) needs assessment process and says the Council’s complaint handling was poor. She said this caused Y a loss of provision and caused them both significant distress.

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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. 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. Ms X said the Council failed to provide suitable provision from 2023. We typically expect people to bring matters complained of to us within 12 months of first becoming aware of them, unless there are good reasons they did not do so. Ms X gave no good reason she did not bring the matters complained of to us sooner, so I have limited my investigation about Y’s provision to look at matters from August 2024, which is a year preceding the date Ms X approached us in August 2025.
9. 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 Education, Health and Care 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.
10. The Council issued Y’s final Educational, Health, and Care Plan (EHC Plan) in March 2025, giving Ms X her appeal right. Ms X appealed the contents of Y’s EHC Plan in June 2025. She appealed the description of Y’s special educational needs, and the type of placement in the Plan. She said Y’s current EHC Plan, and the provision set out in it, did not accurately reflect his needs. She also appealed on the basis that she wanted Y to receive an education other than at school (EOTAS) package of provision, and that the EHC Plan specified provision that assumed attendance at a setting, which she did not consider possible for Y.
11. Ms X’s complaint about the Council’s failure to provide Y with suitable education after March 2025 is linked to her appeal to the Tribunal. For this reason, I have investigated matters from August 2024, for reasons explained above, to March 2025, when the Council issued Y’s final EHC Plan and subsequently provided Ms X with her appeal rights.

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How I considered this complaint

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

Education, Health and Care Plans

14. 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. 
15. 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: 
16. 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. 
17. 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. 
18. 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.
19. 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).  
20. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Alternative Provision

21. 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.
22. 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.
23. 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 (July 2022).
24. Our guidance says that councils should:

• Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) and even when a child is on school roll.
• Consult all the professionals involved in a child’s education and welfare and take account of the evidence when making decisions.
• Consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them from attending.
• Keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases.
• Work with parents and schools to draw up plans to reintegrate children into mainstream education as soon as possible, reviewing and amending plans if necessary.
• Council should be able to demonstrate how they made their decisions. Councils must take account of all available evidence, and record the reasons for its decisions;
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
• 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

25. At the beginning of 2024, Y had a respiratory illness. He recovered but became too anxious to attend school. He stopped attending school altogether in February.
26. Ms X requested the Council provide medical tuition for Y at the end of February.
27. The Council arranged educational provision for Y in June. This consisted of one 50-minute lesson of maths, English, and science per week. This was delivered on a 1:1 basis as Y felt unable to be taught in a group setting.
28. Ms X requested an EHC needs assessment for Y in mid-June. She told the Council she wanted it to arrange EOTAS for Y, as she felt he was unable to cope with any school setting.
29. The Council agreed to issue an EHC Plan. It issued the draft Plan in mid-November. Ms X requested some amendments to the Plan.
30. The Council’s Educational Psychologist (EP) consulted with Ms X about Y’s needs in December and how these should be reflected in the EHC Plan. The EP issued their report.
31. Ms X advised the Council in December that she had arranged a private autism assessment for Y in January 2025.
32. The Council issued an amended draft Plan at the end of January. Ms X requested further amendments to the Plan at the beginning of February, including wording relating to the EP recommendation that Y has individual teaching sessions with no other children present.
33. The Council also advised Ms X its SEND panel had considered her request for an EOTAS package for Y but felt the provision in Y’s EHC Plan could be met within a mainstream setting. It advised her she could appeal this once it had issued the final EHC Plan, which it intended to do at the beginning of February.
34. The Council emailed Ms X and told her it was seeking further advice from Y’s EP. It also asked Ms X if she wanted the EHC Plan finalised at this stage, or whether she would prefer it to obtain the EP’s advice first.
35. Ms X advised she wanted the Plan to remain as a working document until the EP had provided an update.
36. In February Ms X advised the Council that Y received a diagnosis of Autism, Anxiety Disorder, and Emotionally Based School Non-Attendance.
37. The Council issued the final EHC Plan in mid-February. It advised Ms X it would add information about Y’s diagnoses once a written report had been provided.
38. The EP advised in February that Y would require a ‘graded exposure approach’ to being taught in group settings with other children.
39. The Council reissued Y’s final EHC Plan in March, which included information about the above diagnoses.
40. Ms X disagreed with the setting named in section I of the Plan, which was a mainstream school.
41. Ms X submitted a stage one complaint to the Council in the same month. She said the Council had breached the timescales for issuing the final Plan. She also said she wanted the Council to arrange EOTAS for Y, and a mainstream setting was not suitable for him. She further said the Council had failed to provide Y with a full-time education since he had not been attending school.
42. The Council issued its response in April. It apologised for issuing the EHC Plan beyond the statutory timescale. However, it disagreed with Ms X that a mainstream setting was not suitable for Y and advised her of her appeal rights. The complaint response did not refer to Y’s provision.
43. Ms X requested the Council escalate her complaint to stage two of its complaints process.
44. Ms X appealed to the Tribunal in June.
45. The Council issued its stage two complaint response in August. It apologised for its delayed response to Ms X’s complaint. The Council said a programme of education usually starts with a part time offer of 17.5 hours per week of provision, with a view to gradually building up attendance at school. It apologised that it had not given Y this opportunity. The Council offered Ms X £500 as a financial remedy for Y’s loss of provision, which she accepted.
46. Ms X approached the Ombudsman in August.

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Analysis

Educational provision

47. When Y stopped attending school, the Council had a duty to ensure he received a suitable and full-time education. Statutory guidance is clear that where a child is unable to attend school, a council should arrange provision, where possible, which is ‘equivalent to the education they would receive in mainstream school’, and as close to full time as their health allows.
48. The Council arranged 50 minutes of 1:1 tuition in English, maths, and science per week, which is two and a half hours in total. This level of provision remained unchanged from September 2024 to March 2025. We consider full time education for children unable to attend school to be equivalent to 25 hours per week. While 1:1 tuition is more intensive than group tuition, and fewer hours may therefore be appropriate, two and a half hours per week falls short of what we consider a full-time education.
49. The Council has provided no evidence to show it considered Y’s health needs, educational ability, or age when arranging this provision. The Council said Y received 1:1 tuition, unlike other pupils in similar situations who received tuition in group settings. However, this does not mean that the level or frequency of provision Y received was sufficient. There was no analysis of what Y could realistically manage.
50. Further, the Council did not discuss with Ms X or Y how he was engaging with the tuition, or whether he felt able to manage more. This is fault. The EP report had set out that Y was engaging well with his lessons. Ms X told me she had told the Council Y was engaging well. Despite this, the Council made no amendments to the level of Y’s tuition. There was no analysis of what Y could realistically access. On balance, it is likely that Y would have been able to engage with more tuition over this period. That Y missed out on tuition he likely could have engaged with compounds the injustice caused by the Council’s failure to provide sufficient education. This caused Ms X distress and uncertainty about the extent of the provision Y missed.
51. The Council told the Ombudsman that Y’s 1:1 timetable was always intended to be a temporary measure, and that its aim was to increase Y’s exposure to group tuition in line with a wider remodel of its EOTAS service. However, its plans to change how it delivered EOTAS for all pupils did not affect what it owed Y individually at that time. Whether or not it intended to move towards group tuition in the future was immaterial. The section 19 duty required the Council to provide suitable education based on Y’s needs as they were at the time, and to monitor and adjust provision as his circumstances changed. The Council did not do this. Its failure to monitor how Y engaged with the provision and adjust tuition accordingly, between August 2024 and March 2025, is fault.
52. Additionally, the Council told the Ombudsman it did not record this decision to provide Y with the level of tuition it arranged. Good administrative practice requires councils to keep adequate records of significant decisions, particularly those involving a child’s education. A record of the Council’s decision about the frequency of Y’s tuition would have shown what it considered and why it made its decision. Had this been presented to Ms X she would have also been given the opportunity to challenge the Council’s decision. This lack of opportunity caused uncertainty to Ms X, as she cannot be sure what provision Y would have received had she been able to challenge the Council’s decision. The lack of decision-making record also meant there was no foundation for the monitoring the Council should have been carrying out.
53. The Council offered Ms X £500 for Y’s loss of provision, which she accepted. While this is a welcome acknowledgement of the injustice caused to Ms X and Y, it does not fully address the injustice identified. I have recommended a more suitable remedy below and have taken into account £500 the Council has already paid.

Delay in EHC needs assessment process

54. The statutory timescale for completing an EHC needs assessment and issuing a final EHC Plan is 20 weeks from the date of the request. Ms X requested the assessment in mid-June 2024, so the Council should have issued the final Plan around the beginning of November. However, the Council issued the final Plan in mid-February 2025. This was approximately 15 weeks after the statutory deadline. This is fault.
55. The Council asked Ms X whether she wished to wait until it had obtained further advice from an EP before it issued the final Plan. Ms X indicated she was content to wait. However, the 20-week statutory deadline is an absolute duty on the Council. Ms X’s agreement to wait does not excuse the Council’s failure to meet it. Similarly, while Ms X requested some amendments in November, this does not account for the delay, as the statutory deadline had already passed. This is fault, which caused Ms X and Y distress. The delay in issuing the final EHC Plan delayed her right of appeal to the Tribunal, which further compounds the injustice.
56. The Council says it has since implemented service improvements to prevent future delays in the EHC Plan process. This includes staff recruitment and training and guidance for staff. It also explained it has since reviewed its process and implemented changes to ensure EHC Plans are issued within statutory deadlines and says it will give parents an opportunity to request amendments or add further comment after the Plan has been issued. These are suitable actions, and it will take time for these changes to embed. For this reason, I have not made any further service improvement recommendations in relation to the EHC Plan process. However, I have made a service improvement recommendation in relation to alternative provision below.

Poor complaints handling

57. The Council’s complaints policy states it will issue a stage one complaint response within 15 working days, and a second stage complaint response within 20 working days. The Council issued both complaints responses outside of these timescales, with the stage one complaint issued 18 days late and the second complaint response issued 35 days later than indicated. The Council’s complaint acknowledgement explained that complex cases can sometimes take longer than this. The Council also wrote to Ms X to explain it would be delayed issuing her stage two complaint. It later explained this was due to staffing and workload pressures. However, this delay still constitutes fault, which added to Ms X’s distress.

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Agreed action

58. Within one month of the final decision being issued the Council has agreed to:
1. Apologise to Ms X and Y for the distress and uncertainty caused by the identified fault.
2. Pay Ms X £2060 to remedy Y’s loss of educational provision. This is to be used for Y’s educational benefit.
59. Within three months of the final decision the Council has agreed to review its processes for identifying and monitoring children who are out of school and receiving alternative provision, to ensure it has effective systems for:
1. Assessing the suitability of provision against a child’s individual needs including their age, educational ability, and ability to engage with educational provision and:
2. Reviewing and adjusting that provision at regular intervals where a child remains out of school for an extended period.
60. The Council should provide us with evidence it has complied with the above actions.

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Decision

61. I find fault causing injustice. The Council has agreed to apologise to Ms X and Y and pay a symbolic remedy to address the identified injustice. The Council has also agreed to implement a service improvement.

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Investigator's decision on behalf of the Ombudsman