Summary: Mrs X complained about the Council’s failure to provide her daughter with a suitable education when she was unable to attend school. She also complained about delay in the Education, Health and Care Plan process and poor communication. We found the Council to be at fault. This caused significant distress and frustration and meant Mrs X’s daughter missed out on an education she was entitled to. To remedy this injustice, the Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complains about the Council’s failure to provide her daughter, Y, with a suitable education when she was unable to attend school for reasons relating to her special educational needs. She also complains about delay in the Education Health and Care Plan process and poor communication.
2. Mrs X says this has had a significant negative impact on Y’s well-being, development and mental health. Mrs X has also suffered significant distress and frustration.

Back to top

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 relevant available evidence and decide what was more likely to have happened.
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
8. 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)

Back to top

What I have and have not investigated

9. Paragraphs 19 to 21 apply to this complaint
10. I have not investigated Mrs X’s complaint about the Council failure communicate with her about the content of the EHC Plan before it was finalised. Mrs X exercised her right of appeal to the SEND Tribunal in December 2024 about the content of the EHC Plan. The communication issue is inextricably linked to the subject matter of the appeal.
11. Nor have I investigated what happened after the Council issued the final EHC Plan in late November 2024. This is when Mrs X’s right of appeal arose.
12. I have investigated what happened between October 2023, this being the date when Y stopped attending school, and November 2024.

Back to top

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.

Back to top

What I found

Relevant law and guidance

Education Health and Care Plans

15. 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.
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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; 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.

17. If the Council agrees to carry out the assessment following a mediation meeting then the Council must decide whether to issue the EHC Plan within 10 weeks and finalise the EHC Plan within 14 weeks of the mediation agreement.
18. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.

SEND Tribunal and appeal rights

19. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.
20. 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 SEND 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)
21. 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.

Alternative provision

22. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017
24. In practice, we would expect to see Councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a Council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.

What happened

25. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
26. Mrs X’s daughter, Y, is of primary school age with SEN. She attended School P.
27. For reasons relating to her SEN, Y was unable to attend school from October 2023. She experienced extreme school-based anxiety. Around the same time, Mrs X made an unsuccessful request for an EHC needs assessment. In December 2023, Mrs Y requested alternative provision. The Council says it was aware that Y was not attending school in November 2023.
28. A meeting, attended by School P and the Council, was held the following month to discuss this matter.
29. All parties, including the Council and School P agreed that Y was unable to attend school and measures were put in place to attempt Y’s reintegration back into school. This included work being set by School P. Mrs X explained Y would benefit from animal therapy but was not ready to attend just yet. In the meantime, Y was undertaking project work at home that was set by School P and was receiving some home-based art therapy.
30. In March 2024, following mediation, the Council agreed to carry out an EHC needs assessment.
31. In April 2024, Mrs X told the School and the Council that Y was ready for alternative provision to begin. Despite a suitable provider (Provider Q) being identified, arrangements for Y to attend were not made until November 2024. In the meantime, Mrs X says Y’s physical and mental health deteriorated.
32. That same month, the Council issued a final EHC Plan. Mrs X lodged an appeal with the SEND Tribunal about the content of the EHC Plan. She also made a formal complaint about how the matter had been handled. Dissatisfied with the Council’s response and continued lack of suitable educational and SEN provision, Mrs X brought her complaint to the Ombudsman in August 2025.

The Council’s position

33. In response to Mrs X’s complaint and the Ombudsman’s enquiries, the Council’s position is summarised below.

• It accepted EHC Plan statutory timescale was not met and this delay impacted on Y getting the right support. This was due to increased demand, the national shortage of educational psychologists and staff shortages. In its response to the Ombudsman the Council set out the action it has taken to address these issues that are within its control.
• Section 19 duties were owed to Y from November 2023.
• There was a delay in arranging alternative provision in the form of a more structured education. This was, in part, caused by lack of clarity over the responsibility of School P and the Council.
• The involvement of multiple services and Council departments lead to insufficient co-ordination and oversight of the case.
• Communication had at times been difficult and Mrs X had often received conflicting information that caused an already difficult situation to be even more distressing.
• It has learned from what went wrong in this case, including strengthening escalation processes, clarifying responsibilities and ensuring decisions affecting children not attending school are taken without delay. To this end it has issued a revised Section 19 policy.
• It apologised to Mrs X for the areas of complaint that had been upheld during its complaints handling.

Analysis

34. To the Council’s credit, in response to my enquiries, the Council has accepted it acted with fault in several areas and Y has been let down by the system. I agree. It has also reflected on what went wrong and identified several areas of service improvement. I welcome this,
35. I will set out assessment of the separate areas of complaint below

Delay

36. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
37. The timescale for an EHC needs assessment, including issuing a final EHC Plan, following mediation is 14 weeks.
38. The Council agreed to carry out and assessment in March 2024. This meant the Plan should have been issued in early June 2024. The final Plan was not issued until November 2024. This was a delay of approximately five months.
39. Between March and November 2024, it clear from the case records I have seen that Mrs X was not notified of the anticipated timeline or kept informed what was happing about the progression of the matter.
40. The delay and lack of communication was fault. This caused Mrs X significant distress, uncertainty and frustration. This injustice requires a remedy.

Lack of alternative provision

41. The Council accepts Y was out of school and entitled to section 19 provision from November 2023. 
42. The case records show School P was providing some level of support and educational provision between November 2023 and April 2024, although I note this was limited to project work. There also was a SEN support plan in place that was reviewed monthly and was responsive to parental requests about what Y was able to manage.
43. Y received no educational provision between April and November 2024.
44. This failure to ensure suitable alternative provision was in place for one year between November 2023 and 2024 was fault. I have also found fault with the Council’s communication with Mrs X during this time. It failed to keep Mrs X informed as to what, if any, progress was being made between April and November 2024, adding to her distress and frustration.
45. It is clear from the records I have seen that Y’s mental and physical health deteriorated during her period of absence from a formal educational setting. This is evidenced by School P’s SEN support plan that show she became unable to undertake any work set by the school because it prompted extreme school-related anxiety.
46. It is not possible for me to say, even on balance of probabilities, that this decline was a direct result of fault by the Council. However, I am satisfied that there is uncertainty over whether Y’s well-being could have improved had the Council ensured alternative provision was available from November 2023. This uncertainty is injustice.
47. The Ombudsman’s guidance on remedies recommends that where we have found fault which has resulted in loss of education we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. In coming to a suitable figure I considered Y was a child with special educational needs and did not receive any education apart from work set by School P in the earlier months. In this case I consider a payment of £1500 for each term of missed education is an appropriate amount, 

Back to top

Agreed action

48. Within four weeks from the date of my final decision, the Council agreed to take the following action.
1. Apologise to Mrs X for the injustice caused by the above faults. 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.
2. Pay Mrs X £500 as a symbolic payment to acknowledge her distress and frustration caused by the delay in the EHC Plan process and poor communication.
3. Pay Mrs X £4500 as a symbolic payment to acknowledge the loss of educational provision between November 2023 and November 2025.
49. In response to complaint, the Council has provided the Ombudsman with an explanation for the delay and taken action to address the issues highlighted by the is complaint, including an undated section 19 policy. For this reason, I do not consider it necessary to make any service improvement recommendations.
50. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

51. I find fault causing injustice. The Council agreed to remedy the injustice to Mrs X. On this basis, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman