Summary: The Council was at fault for delays issuing a child’s final Education, Health and Care Plan. This meant the child had to wait longer than they should have to receive a final Plan and Ms X had her appeal rights to challenge the content of the Plan delayed. The Council was not at fault for deciding not to provide alternative provision but it should have communicated its decision to Ms X. The Council agreed to apologise, make a payment to Ms X and carry out a service improvement.

The complaint

1. Ms X complains the Council did not provide her child with suitable education when they no longer could attend school and delayed issuing a final Education, Health and Care (EHC) Plan.
2. Ms X said this has impacted her child’s mental health and they have fallen behind in their learning.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. 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.
7. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
8. 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). 
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. I have not investigated whether the Council provided suitable education and special educational provision after it issued a final EHC Plan in March 2025.
11. Ms X had appeal rights to challenge the EHC Plan which she exercised. Ms X appealed sections B, F and I as she considered these were inadequate. For section I Ms X wanted education, otherwise than at school (EOTAS) whereas the Council felt her child’s school placement was suitable. We cannot look at whether Ms X child received suitable educational after March 2025 as it was the role of the Tribunal to decide what was a suitable placement for the child.
12. The special educational provision in the EHC Plan was largely school based. I consider it would be too closely linked to the issues under appeal therefore we cannot investigate this.

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How I considered this complaint

13. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments 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

Law and guidance

EHC needs assessment

16. A child or young person with special educational needs 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.
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:
• 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 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).
18. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Alternative provision

19. 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.
20. 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.
21. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
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.

What happened

23. There has been ongoing correspondence between Ms X and the Council since early 2024. In this section of the statement I summarise key events only. I do not refer to every single contact and communication.
24. In February 2024, Ms X’s child, Y, stopped attending school. Ms X reported Y had ongoing anxiety and there was an incident on a school trip which contributed to her deciding not to let Y return to school.
25. In early March 2024, Ms X asked the Council to carry out an EHC needs assessment for Y.
26. In early April 2024, the Council wrote to Ms X and told her it would not carry out an EHC needs assessment for Y. The Council informed Ms X of her appeal rights to challenge this decision. The letter the Council sent to Ms X explained support had been offered to Y but as this had not been fully engaged with it was not clear what an EHC Plan could provide Y with.
27. In April 2024, email communication between the Council and Ms X showed they were discussing support for Y. The Council asked Ms X to attempt to get medical evidence from Y’s GP saying whether Y was medically fit to attend school.
28. In July 2024, Ms X asked the Council to put in place alternative provision for Y. The Council started to put in place some provision. The Council said this was to try to help Y reintegrate back into school as they were starting secondary school in September 2024. The provision took place over the school summer holidays.
29. In September 2024, Y started a new school placement and was due to attend four days per week and receive the reintegration support from the Council too.
30. The Council decided to carry out an EHC needs assessment for Y in early September 2024. The Council said in response to our enquiries this was because it received further information from Y’s school which it said confirmed the extent of Y’s non-attendance and the support already put in place.
31. On 3 March 2025, the Council issued a final EHC Plan. The Council named Y’s secondary school in section I of the Plan. The Council also stopped Y’s reintegration support it had been providing.
32. Ms X appealed sections B, F and I of Y’s EHC Plan at the SEND Tribunal. Ms X disagreed with the school placement and wanted Y to receive EOTAS.
33. In June 2025, the Council said it would not put in place any alternative provision for Y as it believed the school placement was suitable education.

Ms X’s complaint

34. Ms X complained to the Council in June 2025. Ms X complained the Council had not provided suitable education for Y since February 2024 and it had taken 14 months to finalise Y’s EHC Plan.
35. The Council progressed Ms X’s complaint through its complaints process and its final position, in September 2025, was:
• It put in place some provision for Y in July 2024 but this was only for a specific period and not a long term solution. The Council acknowledged it did not communicate this to Ms X.
• It believed educational provision could be provided to Y at school and this was an appropriate offer of education for Y. The Council said it believed Y’s school was a suitable option. The Council said it had recently decided to offer EOTAS following the receipt of a new occupational therapist report and would concede this point to the Tribunal.
• It recognised there was a delay issuing Y’s final EHC Plan. The Council said this should have been issued in late January 2025 and was not issued until early March 2025. The Council offered Ms X £150 to recognise the delays.
36. Ms X remained dissatisfied and complained to the Ombudsman. Ms X said the Council had not provided suitable education for her child and took too long to issue their EHC Plan.

Findings – Delays issuing EHC Plan

37. Ms X initially asked the Council to assess Y’s EHC needs in March 2024. The Council decided it would not do this and issued Ms X with an appealable decision in early April 2024. The Council explained in its decision the reasons why it would not carry out the assessment. In response to my enquiries the Council explained it received some new evidence from Y’s school. After receiving this the Council reviewed its decision and decided to carry out an EHC needs assessment.
38. I do not consider the Council at fault for how it decided this. At the time of Ms X’s initial request for an EHC needs assessment the Council looked at the evidence it had and decided not to carry out an assessment. While Ms X may disagree with this decision I am satisfied it was taken without fault.
39. The Council decided it would carry out an EHC needs assessment for Y in early September 2024. This meant if the Council decided to issue a final EHC Plan as it did, it should have completed this process by late January 2025. The Council did not issue Y a final EHC Plan until early March 2025. This was fault. It is not clear what caused the delays as the Council had already obtained advice from an educational psychologist which is very similar to the section F provision listed in Y’s EHC Plan. As a result Y had to wait longer than they should have to receive an EHC Plan and Ms X’s right of the appeal to the SEND Tribunal was delayed.
40. The Council has acknowledged it delayed issuing the final EHC Plan and offered Ms X £150 to recognise this. I am satisfied this is a suitable remedy for the injustice caused and is in line with what we would recommend.

Findings – Alternative provision

41. As explained above I have only considered this part of the complaint up until March 2025.
42. Y stopped attending school in February 2024. From April 2024, the Council and Ms X were in communication about Y’s situation. Email correspondence showed the Council told Ms X it would look at whether it could provide alternative provision for Y, however it decided not to.
43. In response to my enquiries the Council said it did not provide alternative provision at this time as it did not have medical evidence Y was unfit to attend school and it was satisfied the school were taking steps to support Y by putting in place reduced timetables, and adjustments to the school day. While I do not consider the Council at fault for the way it made its decision not to provide alternative provision, I cannot see that it properly communicated it to Ms X. This was fault. As a result Ms X did not have a clear understanding of the Council’s position and why it decided not to provide alternative education to Y.
44. In July 2024, the records showed Ms X formally asked the Council for alternative provision for Y. The Council agreed to put in place some transitional support as Y was due to finish primary school in July 2024 and start secondary school in September 2024. In response to my enquiries the Council explained it did not consider it had a duty to provide Y with education at this time as it was satisfied the school was making education available for Y including online and paper based work.
45. I do not find the Council at fault for how it decided this. However I cannot see where the Council communicated its position to Ms X. The Council should have explained it was not providing education under section 19 of the Education Act 1996 and given Ms X its reasons. It should have explained the transitional support it provided from July 2024 was only to help Y move to secondary school and would end once the Council issued a final EHC Plan. Failure to do this was fault. The removal of this support in March 2025 and the lack of explanation about the Council’s position on providing education to Y would have caused Ms X frustration and distress.

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Agreed Action

46. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Ms X for the injustice caused from the above fault. 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.
• If it has not already done so, pay Ms X £150 it offered in the final complaint response to recognise the delays issuing the final EHC Plan.
• Pay Ms X £150 to recognise the frustration and distress she suffered as a result of the Council not properly communicating its position about why it decided not to provide alternative provision to Y from April 2024 to March 2025.
• Remind staff to ensure that where the Council decides not to provide alternative provision this decision is clearly communicated to a parent with the Council’s reasons.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman